HIS HONOUR: Mr Sikos my practice is to tell people in advance what sentence I propose to impose. Ultimately for people being sentenced that is all they really are concerned about. Much of what I will speak about you already know or you are not interested in. The total sentence I propose to impose upon you is a sentence of five years, five months imprisonment to date from the date that you came into custody which I understand is 9 February 2015. I propose to impose an effective non‑parole period of two years, nine months which means that you will be eligible for release to parole on 8 November this year.
Whether you are released to parole will be a matter for the Parole Authority. Having previously never been on parole it may well be that it will not be a significant issue for you to be released on parole on that date. I have to give my reasons. There is a large number of issues I have to address not only by reason of the submissions made by the parties, particularly your counsel but because of the varying legislation that is to be taken into account so I will take some little time.
The prisoner George Sikos appears today for sentence in relation to offences that were committed on 30 December 2014 and 8 January 2015. The accused was to be tried initially in respect of a range of offences committed variously on 22 December 2014 and 30 December 2014 and 8 January 2015 at Sans Souci in respect of the supply of substantial quantities of prohibited drugs, particularly 3/4 methylenedioxymethylamphetamine and cocaine to an undercover police officer in circumstances I will outline shortly.
I ordered separation of the respective allegations by reference to the dates upon which those events were alleged to have occurred, thus the accused on my order was required to be tried three times.
In respect of the alleged offences on 22 December 2014 the accused was acquitted in respect of the two counts on the indictment. In respect of the offences of 30 December 2014 the accused was found guilty of count 3 that is an offence of supplying a prohibited drug, namely cocaine, for which he is for sentence today. But he was acquitted in respect of offences of supplying not less than the commercial quantity of "MDMA", or alternatively supplying that particular drug.
The third trial was listed to start in early February this year. The offender pleaded guilty on 6 February 2017 to an offence of supplying a prohibited drug namely 3/4 methylenedioxymethylamphetamine in not less than a commercial quantity for that drug. The Crown had proposed arraigning him initially in respect of supplying not less than a large commercial quantity of that drug and a matter of supplying a prohibited drug, to wit cocaine, has been included on a Form 1 which initially would have been on the indictment had the trial proceeded.
The MDMA alleged to have been supplied on 30 December in respect of which the accused was acquitted amounted to a quantity of 235.1 grams in pill form of 20.5% purity. The offence of supplying cocaine simpliciter, that is the offence of 30 December 2014, carries a maximum penalty of fifteen years' imprisonment and/or a pecuniary penalty of 2,000 penalty units. I propose to impose a term of imprisonment without a penalty by way of fine.
In respect of the offence of supplying not less than a commercial quantity of MDMA on 8 January 2015, the maximum penalty is twenty years' imprisonment and/or a fine of 3,500 penalty units. That particular offence has a standard non‑parole period of ten years and I am required in respect of that matter to fix a non‑parole period.
The matter on the Form 1 in its terms when dealt with on indictment has the same maximum penalty in respect of the offence of 30 December 2014 for which the prisoner appears for sentence.
In the agreed statement of facts I was advised the Crown has accepted a plea of guilty to supplying not less than the commercial quantity of MDMA on 8 January 2015, in the alternative to the charge of supplying a large commercial quantity of MDMA on that day in full satisfaction of the indictment, on the basis that a jury could have had a doubt that the offender actually knew or believed or was aware that there was a significant or real chance that the MDMA was a large commercial quantity in that particular supply. However, the prisoner accepts through his plea of guilty that at least he was aware there was a significant or real chance that there was a commercial quantity of MDMA being supplied.
The facts in terms of the basis of the plea, or the structure of the matter, that is placing what was on indictment on a Form 1 in connection with the principal offence for which the prisoner is to be sentenced, is not set out in the agreed statement of facts. I point out from the outset that it is to be borne in mind in sentencing the prisoner in respect of the principal offence on 8 January 2015 that in taking into account the matter on the Form 1 that offence occurred at the same time in circumstances, as the facts reveal, where the prisoner was responsible at particular points for control of a package which had within it two separate drugs. It would be correct to say in the circumstances that on the basis of the acceptance of the plea of guilty to the principal charge, it is difficult to be satisfied beyond reasonable doubt of precisely what quantity of cocaine the prisoner believed he was concerned with in the relevant transaction.
The prisoner is entitled to a discount for the utilitarian benefit of the plea of guilty entered in February of this year. It was submitted on behalf of his counsel that the discount for that particular plea of guilty should be 20%, the learned Crown Prosecutor submitted that it should be no more than 15%. I note in relation to that matter he was committed for trial on a more serious charge along with other charges on that date and also on other dates, that is in respect of alleged events occurring on 22 December 2014 and 30 December 2014. As I earlier indicated, I ordered three separate trials in relation to those three sets of allegations and I have set out the history of the matter culminating in ultimately the entering of the plea of 'guilty' to the principal offence in respect of the events of 8 January 2015.
The objective alleged involvement of the accused in relation to all three matters charged was substantially the same. There was, it must be fairly said, even in respect of the matters for which the prisoner was acquitted and which verdicts I respect, particular similarity in the role of the prisoner absent, in respect of the first set of allegations, knowledge on his part of the presence of prohibited drugs which must have been the issue of concern to the jury. The Crown case against the accused I am satisfied establishes that the prisoner was a form of conduit between the wholesaler, or source of the drugs, and the seller of the drugs, unbeknownst to him to an undercover police officer.
The matter is a little bit more complicated however than simply identifying the accused a "conduit". Usually in drug transactions where a person acts as a go between, between the wholesaler and the seller, there is absent a direct connection between the wholesaler and the seller. In respect of all three incidents, it is clear that the wholesaler Mr Peovski, and Mr Mihelic, the supplier, were known to one another. In fact so closely did Mr Peovski live to Mr Sikos and to the place where Mr Mihelic worked that Mr Mihelic quite often oscillated from time to time between the residence of Mr Sikos and the residence of Mr Peovski.
I will come back to at a later time the discount that I propose to give for the utilitarian benefit of the plea of guilty that was entered, but ultimately I have concluded that it should be 15% and not the 20% submitted on behalf of counsel for the prisoner, noting the decision of Gorman [2002] NSWCCA 516 upon which counsel for the prisoner relied.
The evidence in the first trial had some relevance of course to this sentencing exercise because there was evidence in the first trial that was also introduced in the second trial and would have been introduced in the third trial. That evidence concerned the first contact between an undercover officer at a sailing club at Dolls Point and Mr Mihelic on 17 December 2014. That evidence obviously was commonly relevant because that set in motion a series of negotiations that culminated in the three distinct supplies in which Mihelic was clearly involved and gave rise to the three separate allegations against the prisoner.
The prisoner and the other two men obviously, from listening to the telephone intercept material, knew each other quite well certainly as at mid‑December. The prisoner did not give evidence at his respective trials nor gave evidence on sentence. He has given some history to a psychologist which has not been tested by the Crown, but the history he gives to the psychologist reflects at least having known Mihelic in a commercial sense claiming to have lent Mihelic some money and claiming that his involvement in the commission of this offending was in part a mechanism for him to be paid back the money that Mihelic owed him in respect of that commercial matter, not a drug dealing matter.
I note in relation to the history given by the prisoner to the psychologist there is absolutely no explanation for the prisoner's contact or knowledge of Peovski, the wholesaler of the drugs. The prisoner not only lived near Mr Peovski, in the sense of the area, but was so familiar with him that he could go around to his home and it would seem go into his home looking for him on at least one occasion for the purposes of dropping off items connected with the activities in which he had been involved. It should be noted in relation to this matter unbeknownst it would seem to Mihelic, Peovski and the prisoner that these three men were under regular police surveillance. Their telephone calls were intercepted, the men were photographed surreptitiously, particularly Mihelic and the prisoner at coffee lounges or in the vicinity of motor vehicles that they used from time to time.
The Crown case was and it is established beyond reasonable doubt at least for sentencing this prisoner, that Mr Peovski was the person who was sourcing, weighing and packaging the relevant drugs and at various times passing them to Mr Sikos who passed them onto Mr Mihelic. As I said Mihelic made initial contact with the undercover officer and the discussions he had with the undercover officer were recorded by a listening device. Mihelic in meeting with the undercover officer believed the undercover officer to be a fellow "drug dealer" and was making arrangements to sell him cocaine and MDMA purportedly for him to on‑sell to other persons.
On 17 December, Mihelic laid the groundwork to set up a commercial relationship to sell prohibited drugs to the undercover officer over a period of time. It is clear on the evidence that he did supply to the undercover officer, on at least three occasions that it was alleged that Mr Sikos was involved, the prohibited drugs identified in the respective indictments. That is MDMA and cocaine in substantial quantities. Mr Mihelic fixed prices, agreed to quantities and made promises about prices in the future. In fact as the matter concluded on 8 January, Mihelic was undertaking to the undercover officer that on the next occasion the MDMA which he had on that last occasion 8 January 2015, being sold for $7.50 a pill, would be sold on the next occasion for $7 a pill.
The agreed facts state that police commenced an operation that targeted the mobile phone services of Mr Mihelic and the prisoner. The precise details of that are not made known to me in the agreed facts, although I have been provided with material of a confidential nature at the outset of this trial process concerning the background of the matter. But it is not material made available to the prisoner nor the Crown Prosecutor and thus must be ignored.
It is clear on the available evidence that Mr Mihelic was already was a "drug dealer". It would appear in his conversation with the undercover officer he gave details of dealing with people that unknown to him themselves were police before December 2014. The man Mihelic, as drug dealers do when they are talking with undercover officers, mouthed off about his various exploits. In a range of ways simply sealing his fate and the fate ultimately of Mr Sikos and Mr Peovski. Mihelic met with the undercover officer not only on 17 December but also on 22 December 2014 in the Sans Souci area. He initially negotiated in respect of the first supply in which he was involved and which this prisoner was acquitted, a price of $7,500 "an ounce" and $8 a pill in relation to the MDMA.
In respect of events after the first supply, giving rise to the first offence in time for sentence, a further agreement was made on 23 December on much the same terms. On this occasion as I understand the agreed statement of facts the cocaine was slightly more expensive at $7,800 "an ounce". The prisoner and Mr Mihelic, in respect of this agreement between Mihelic and the undercover officer, met on 30 December and they were under surveillance at a coffee shop in the Sans Souci area with which Mihelic had some connection working either as a barista or a waiter.
After meeting at the coffee shop, the prisoner walked to Peovski's house which was within obviously walking distance and picked up a white paper retail bag which contained five ounces of cocaine (in general terms) and 1,000 MDMA pills all packaged. There is no evidence that the prisoner was told by Peovski what was within the package in detail, but it clear by reason of the way in which the case was conducted and the verdict of the jury, that the prisoner knew that within the package was the prohibited drug cocaine.
The package was taken back to Mihelic who went on to meet with the undercover officer. Mihelic was given $47,500 in "buy" money. The notes were carefully recorded. Mihelic after receiving that money went back to Mr Sikos' home which was again not far away. He travelled by vehicle and picked him up. He took the prisoner to Mr Peovski's house which was, as I said, nearby. The prisoner attempted to deliver the white coloured bag that he had in his possession at that time which contained the money. Apparently Mr Peovski was not home. The prisoner took the bag with him, met up again with Mihelic and then later on as I understand the facts, Peovski after some communication with him by telephone came around to the prisoner's home presumably to pick up the cash that was in the bag.
The cocaine that was supplied to the undercover officer by Mihelic weighed 139.7 grams and was 90% pure. My experience particularly doing many trials involving the importation of cocaine, it usually is imported from South America as a general rule but occasionally from South East Asia, shows that that level of purity is as high as one would normally find. Showing that the cocaine had been recently imported. But the prisoner is not responsible for that. I point out in respect of that "buy" money to which I referred, $39,500 of it was recovered when Mr Peovski was arrested as was the prisoner on 9 February 2015.
Afterwards Mihelic and the undercover officer recommenced communications on New Year's Day 2015. An agreement was reached between Mihelic and the undercover officer on 5 January 2015 to supply 3,000 MDMA pills, this time at $7.50 a pill as I said earlier, with a undertaking by Mihelic that he would try and sell the next lot for $7 a pill. The prisoner was observed at 9.35am on 8 January 2015 carrying a white 'Supabarn' bag again to the café where Mihelic worked and where they had met previously. The prisoner was observed to remain at that café for a period of two hours, Mihelic was apparently working during that period of time. During that period of time it would seem, not necessarily in the presence of the prisoner, Mihelic communicated by email with the undercover officer to meet at 3 o'clock that afternoon.
The prisoner left the café at about midday to go home, he left empty‑handed. Mihelic took the bag provided to him to the sailing club at Dolls Point and in fact met the undercover officer shortly after 2.30pm. He handed over five freezer bags of cocaine, approximately five ounces, and the 3,000 pills and received $61,500. He was in fact short‑changed a thousand dollars. The cocaine as I understand it, had been sold for $8,000 per ounce. Mihelic then drove to the prisoner's house and on the facts available to me appears to have left the cash that was provided to him, or part of it, with the prisoner.
At 3.25pm Mr Sikos rang Mihelic and said "I think you took a little bit more … I was 600 short my share". Mihelic said "He pulled 21 which was right". Mr Sikos delivered the cash that was in his possession to Peovski just after 4.15pm. The total amount of the cocaine was 139.4 grams. Again it was 90% pure. The 3,000 pills weighed a total of 718.6 grams, they were on average 19% pure which is standard for MDMA pills, although again in my experience ten or fifteen years ago the pills coming from Holland were usually around about 25 to 30% pure, I do not know where these pills were manufactured. There is no evidence of that for me. The quantity that was actually supplied to the undercover officer was not less than a large commercial quantity but the prisoner is not to be sentenced for that.
MDMA pills of the same appearance as though supplied on 8 January 2015 weighing 558.6 grams were found at Peovski's house when he was arrested and his home was searched on 9 February 2015. $29,900 of the "buy" money that had been provided on 8 January was found in Peovski's possession on that date. If Mihelic kept $21,000 of that money, assuming just for the moment that that is what the reference was that Mihelic made, that leaves approximately $11,000 unaccounted for. Of course I do not know if Peovski disposed of the "buy" money that was provided to him and I do not know precisely what Mihelic got beyond the cryptic comment he made to Mr Sikos in their phone call. As Mr Sikos was obviously complaining about being $600 short, without it seems to me significant complaint, it appears that what he kept must have been at least in the thousands or not hundreds and possibly up to $11,000. On the other hand, possibly he kept "substantially" less. The prisoner in any of the proceedings before me has not sought to assist the Court to solve this particular puzzle.
The substantial bulk of the submissions, made in writing by the prisoner's counsel and orally, were concerned with defining the role of the prisoner. Likewise the Crown's submissions dwelt upon the role of the prisoner and I have taken all those submissions into account. I bear in mind in the context of the evidence of the existing relationship between the three men which could reasonably be described, by reference to their telephone conversations, as more a friendship than simply a business relationship through drug dealing, existed at least as at mid‑December. On the basis of the hearsay representations of the prisoner with Mihelic it existed for some time before that. I only have available to me the benefit of telephone intercepts over a three or four week period.
It is clear on the evidence that Mr Mihelic was involved in drug supply before the events the subject of the current matters. There is no evidence of this prisoner being involved in other drug supplies and Mihelic made no representations to the undercover officer that anybody with whom he was involved in this matter had been involved in previous drug supplies. It is also clear on the evidence available to me that he and Peovski had agreed to be involved in the supply of the substantial quantity of drugs after 8 January in which this prisoner played no part.
The prisoner was acquitted in the first trial because the jury were not satisfied beyond reasonable doubt that the prisoner know that he possessed prohibited drugs and/or that he was involved in the relevant drug supply and the basis of the entering of the plea of guilty I have already set out. The prisoner was found guilty at the second trial because the jury were not satisfied beyond reasonable doubt that he knew that he was involved in the supply of MDMA but that he knew that he was involved in the supply of a prohibited drug, cocaine. The character of the packages he was carrying must have led him to conclude that the quantity was substantial but I cannot find that he knew beyond reasonable doubt the exact quantity. Nor can I find beyond reasonable doubt that he knew precisely what the character of the transaction had been between Mihelic and the undercover officer.
The telephone intercepts relating to the transaction of 30 December 2014 do not reveal Mihelic's discussing even in code the details of that transaction with the prisoner. One has to wonder however what Mr Sikos was doing involved in this particular series of enterprises. Mr Mihelic did not need him, Mr Mihelic knew who Mr Peovski was, he knew where he lived.
Although Mr Mihelic, and the prisoner to a lesser extent and perhaps Mr Peovski, spoke in a sort of a very subdued code from time to time, it is clear they did not know their telephones were incepted. Although Mr Mihelic may have suspected that was the case it did not stop him shooting his mouth off. He did not know that his conversations with the undercover officer were being recorded.
Of course, neither man that is the prisoner nor Mihelic, knew that they were under regular surveillance. But they did not particularly seek to disguise their movements. Their cars were readily identified and as I have said there was a great deal of evidence of them meeting together in cafes and travelling either to Mr Sikos' house and/or Mr Peovski's house. I get back to the point that I made that ultimately the prisoner was not essential to Mr Mihelic. It might have to some extent distanced Mr Mihelic from Mr Peovski but the evidence shows clearly that Mihelic knew where Peovski lived and had been to his house over the relevant period of time.
In respect of the supplies to which the prisoner is to be sentenced I am not satisfied beyond reasonable doubt that the prisoner financed the supplies or planned them or was to substantially profit in respect of the supply cocaine. The evidence is silent at least directly as to what benefit he would receive in the context of his explanation the psychologist which does not discern, I hasten to say, between the two separate crimes for which he is to be sentenced. He gives an account of some financial obligation to him by Mihelic which could be seen on his account to apply to both transactions.
I conclude beyond reasonable doubt in respect of the first transaction that he was to receive some financial reward but the extent of that financial reward is unclear. Particularly in light of his acquittal in relation to the supply of MDMA, I could not conclude that he was to substantially benefit financially. The benefit to him financially in respect of the second offence in time in my view in light of his own admission was not small but clearly in my view he was not to benefit as much as Mihelic or Peovski.
So far as his role is concerned, his tasks were not that of a "courier" it is clearly so. He knew who Peovski was, he must have known in the context of the plea that he entered in relation to the third event in time that Peovski was the source of the prohibited drugs that he admits that he was involved in supplying and he must have known that Mihelic was going to give them to the person who was going to hand over the money. Because he, the prisoner, received from Mihelic the money that was paid to Mihelic. The prisoner's role therefore was that of a "middle man" assisting people in the transaction with whom he was already friendly, but his role was not vital. The source of that friendship between the three of them is not clear but I could not conclude that it was a friendship based upon drug supply or criminal activity.
As I have said earlier, the prisoner was close enough for the prisoner to go to Peovski's home and for Peovski to go to his home. The men as I understand it, socialised both in association with the relevant transactions and it seems independently. It is of course possible that they had some other criminal connection. Not one necessarily related to drug supply. But as to whether that exists or not I cannot decide. As I mentioned, the prisoner has given a history of commercial relationship with Mihelic but that in my view does not tell the whole story and certainly does not explain the prisoner's connection with Peovski about which the prisoner has been silent when he spoke to the psychologist.
As the contextual picture is not clear and the extent or depth of their friendship is not clear, the facts and circumstances of the respective supplies including the events in respect of which the prisoner has been acquitted do not establish the prisoner as having an ingrained criminal relationship with these other men. This is underlined by not only the accused's acquittal in respect of the first set of allegations but his complete lack of involvement in other criminal activity in which Mr Peovski and Mr Mihelic were involved. I should point out neither of these men has been sentenced yet.
Mr Mihelic pleaded guilty to offences committed on 22 December, 30 December, 8 January and 9 February. He was arrested on 9 February as were the other two accused. He pleaded guilty as I understand it on 21 January 2016. Mr Peovski was to be tried with this accused but again it does not matter very much. His sentence proceedings apparently are listed on 13 July 2017. He likewise faces at least one offence which carries a maximum of life imprisonment. It seems as though, from what I can see of the material provided by the Crown, that a number of allegations may have been rolled up into the one charge.
I should point out thus that those two men remain unsentenced. I gain no guidance therefore in relation to penalties imposed upon them, but they have clearly pleaded guilty to a range of more serious offences and it is self‑evident from the facts that relate to Mr Sikos from the trials that I have conducted, that they are more intimately involved in the substantive offending. There are other features of the matter that lead to that conclusion. When Mr Peovski was arrested on 9 February 2015 as I said, he had over half a kilogram of MDMA in his possession, he also had nearly 30 grams of cocaine. Police found in his possession $109,150 of the "buy" money given by the undercover officer out of $156,500 that was handed over. It was clear given their respective tasks that Mr Peovski and Mr Mihelic took all the risks in actually handing over the drugs, thus would have shared in the bulk of the money.
The prisoner's counsel conceded that the prisoner must have, at least in relation to the third supply, received financial reward and as I said he has made admissions to that effect. But I cannot conclude that his financial reward was equal to that of Mihelic and/or Peovski and it would seem as though Mr Peovski kept the majority of the "buy" money. Then again of course Mr Peovski would have had to pay somebody else for the drugs that he was in possession of, there is no evidence to suggest that he manufactured the MDMA pills and the cocaine must have come from outside the country.
In this regard I also note that Peovski was in possession of a further $216,000 which is said to be the proceeds of crime at the time of his arrest. That shows his much deeper involvement in the supply of drugs than simply the three incidents in December and early January with which this prisoner was connected. I note as his counsel noted, this prisoner was not in the possession at any time of the indicia of drug supply, no multiple mobile phones, packaging equipment or the like and it has not been put to me that Mr Sikos was the mastermind behind this operation.
I note in relation the matter, of course, that Mr Sikos at the relevant times would appear to have had a great deal of time on his hands visiting coffee shops, mixing with Mihelic, going around to meet Peovski, making himself available at the time the two transactions for sentence arose. But then again the relevant events occurred over the Christmas/New Year period and even the most industrious of members of the community have plenty of time, perhaps too much spare time, on their hands over this period.
I accept the prisoner at the relevant time owned a business which has been described in one source as a "adult bookshop", apparently near Brookvale. He has given a history of having in fact owned a number of businesses over a period of time. He and his wife apparently conducted a coffee shop or café of some description for an extended period of time. It is quite clear on the objective evidence both by reference to the vehicle he had, the character of the residence he lived in and the location of his residence that the prisoner lived quite comfortably. But I do not conclude that that comfortable living arose out of criminal conduct. Any business he was involved in other than the events for sentence was not illegal. I cannot conclude the prisoner's lifestyle was drug supply funded.
One of the matters I have noted in relation to the facts of this case is that whilst the cocaine that was supplied was relevantly on each occasion less than a commercial quantity, it was in reality of greater value than the MDMA that was supplied. In respect of the last supply for example which should have totalled $62,500 the amount was made up "five ounces" of cocaine of $7,800 which I have calculated to be $39,000 and the 3,000 MDMA pills at $7.50 a pill, which attract a greater maximum penalty, were valued on that pricing at $22,500.
In respect of the principal offence on 8 January, an offence with a standard non‑parole period, this matter received no attention in the course of the submissions of the parties. As is usually the case the judge is left to his own devices to expand upon the relevant legal principles that apply in respect of sentencing for an offence that carries a standard non‑parole period. In that regard I note the terms of s 54A Crimes (Sentencing Procedure) Act 1999 hereinafter to be referred to as the Act. It states that the standard non‑parole period represents the non‑parole period for an offence in the Table of the relevant Division of the Act taking into account only the objective factors affecting the relative seriousness of that offence that is in the middle of the range of seriousness.
In this particular matter I am also required to have regard to s 54B(2) of the Act. That provides that the standard non‑parole period is a matter to be taken into account in determining the appropriate sentence for an offender without limiting the matters that otherwise required or permitted to be taken into account in determining the appropriate sentence for the offender. As I will explain shortly, there are many matters to be taken into account in this regard. The legislation now currently formulated is in its present form following upon the decision of Muldrock and the general principles in the High Court judgment of Muldrock (2011) apply. The standard non‑parole period in the statutory context of that line is one of a number of matters to be taken into account and provides some guidance in the fixing of the non‑parole period which must be fixed for an offence with a standard non‑parole period.
The assessment of the criminality of the prisoner in relation to this offence with the standard non‑parole period leads me to the conclusion that the objective seriousness of the offending in the context of that set out in s 54A of the Act, is below the midrange of objective seriousness. In my view to put the matter in precise terms, I would place the matter at a position midway between the lower cusp of the middle range of objective seriousness and the least serious offence of this type. Of course although Way v R was set aside by the High Court in Muldrock, in its essence one of the matters that Spigelman CJ pointed out about the middle range of objective seriousness was that it was "not necessarily a narrow band". Whether those obiter remarks still stand of course, I am not able to say. Courts must provide some precision in this regard. I have concluded as to the objective seriousness in this matter that I have set out above on the basis of the role of the prisoner, not being able to be satisfied beyond reasonable doubt that the accused was to receive the greater amount or the greatest amount of the share of the proceeds above that of Mr Mihelic and Mr Peovski and that having regard to the plea entered by the prisoner I cannot be satisfied beyond reasonable doubt that he knew precisely the quantity of MDMA that was to be supplied even allowing for the fact that the actual quantity was greater than a commercial quantity.
With regard to the supply of the cocaine in respect of the events of 30 December 2014, this is an offence not at the lowest level of objective criminality. Bearing in mind it has no standard non-parole period, I do not have to directly express matters in terms of "middle range of objective seriousness" and the like but it would be on my view slightly less serious than the offence of 8 January on the basis that there is no direct evidence or clear evidence of what profit the prisoner was to receive.
The matter on the Form 1 needs to be considered as I have earlier indicated in the context of the fact that prisoner was handling one package. Whilst his admission of guilt by including the matter on the Form 1 represents knowledge of the fact that cocaine was there, I could not be satisfied beyond reasonable doubt that he knew the precise quantity. Certainly he knew that it was a quantity greater than an indictable quantity. In respect of matters on the Form 1, I bear in mind what was said by the Court of Criminal Appeal in the guideline judgment Attorney‑General's Application Number 2 of 2002 (2002) 56 NSWLR 147. Although I note of course there have been further judgments from the Court of Criminal Appeal in relation to consideration of Form 1 matters, but the general principles arising from the guideline judgment as I understand it, still apply.
The fact that there is a matter on a Form 1 will usually mean that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. The entire point of the process is usually to impose a longer sentence which accords with the nature of the sentence that would have been imposed if the principle matter has stood alone. It is wrong to suggest, as Spigelman CJ said in the guideline judgment in 2002, that the additional penalty would necessarily be small, sometimes it will be "substantial". Here of course, the matter on the Form 1 does not involve an offence of the same severity or seriousness as the principal offence, albeit as I said on the objective facts the matter on the Form 1 represents an offence that provided greater profit to the drug "suppliers" than the principal offence. But of course the Court is only concerned with the principal offence and not seeking to identify what precise penalty would be imposed in respect to the matter on the Form 1.
The Court is constrained of course by the maximum penalty for the primary or principal offence, the principle of totality will constrain the Court as well and it would rarely be appropriate for a sentencing judge to attempt to quantify the effect of the matter on the Form 1. But, again, that offending is so intimately bound up with the principal offence as to indicate that the importance of the Form 1 in this particular matter, the Form 1 matter in this particular sentencing exercise is not as great as might be in other cases involving separate offending of equal seriousness.
The prisoner had no criminal convictions at the time of his arrest. As I understand it he was born on 1 April 1963. I would calculate him now to be fifty‑four years of age, he was fifty‑one years of age at the time of the offending. He has been in custody for two years and three months since his arrest. As I said in relation to a trial I just finished I feel that that is a complete disgrace for people to have to wait, even if they are at fault themselves, over two years or nearly two years for their trials to proceed. It is a constant source of concern to me as a judge. In the course of having been in this Court for nearly seventeen years and working so hard to get through the work, I do not understand how it takes so long for trials to get on.
So he has been left in a state of considerable uncertainty. I bear in mind in that regard that whilst the Crown sought to arraign him in relation to eight or nine counts, he has been acquitted of two at trial and the Crown has accepted a plea to a lesser charge in respect of one of the sets of allegations and in respect of the matter of 30 December he was acquitted in respect of two charges.
I have a body of material none of it which has been tested by the Crown, but it was admitted without objection from the Crown. I have a psychologist's report which sets out some history, some of which I have referred to. The picture painted by the prisoner is that he is a man of industry and his father was a man of industry. His father was from Greece as was the prisoner although he came here as a young child, six months of age. He grew up in the St George area where he currently lives. His father was successful but unfortunately has lost a lot of his wealth through some misfortune commercially. His mother died in 2007, sadly at the age of seventy‑three, from breast cancer. His father is now eighty years of age and is in poor health and is in need of high care suffering from prostate cancer. He has sisters and there is no history of criminality in his family. The prisoner has been industrious since leaving school at the age of fifteen or sixteen years of age and as I have said, he has owned a number of businesses which apparently have been quite successful.
He has been in a relationship for twenty‑six years I believe. His partner has attended the Court regularly. She has no criminal history. He has a son aged twelve who is no doubt somewhat bewildered at the absence of his father particularly since he would have been in Year 4 or possibly Year 3 when his father originally went into custody. I accept that his absence from his son is a matter of distress for the prisoner and no doubt distress for the young boy.
His father apparently lost money on some form of business loan in 2010 and ultimately lost his home and is living in strained circumstances. I have already dealt with the issue of the prisoner's account of his involvement in the offending. I do not believe it is the full story. I do not believe for a moment that the prisoner became involved in this criminality solely for the benefit of getting back $2,000 from Mr Mihelic. It would seem on the objective evidence the prisoner was not a person who was desperately in need of $2,000.
The prisoner, as I have said, has been in custody since 9 February 2015 and that period of custody will be taken into account. He has been bounced around a number of gaols. He has been all the way out to Wellington. He has been in custody in the Sydney area. Whilst it is said by the psychologist who "has adjusted well to incarceration" he does have anxiety and some claustrophobia from incarceration and that is to be expected with a man of his age never having been in custody before. He was cooperative with the psychologist and there is no evidence of any psychiatric or psychological illness in his past or at present although any anxiety he feels would be reactive to his current circumstances.
His intellectual functioning was assessed at what was called borderline or low average. I find that assessment somewhat difficult to understand in the context of what I understood from the evidence to be his success in business. I very much doubt that the accused is "borderline" in real terms although whether there was some cultural bias in the testing is not made abundantly clear. So far as his general emotional and psychiatric functioning, he was relatively well adjusted and as I said there is no evidence of any emotional dysfunction or behavioural dysfunction, no evidence of personality pathology, no history of significant substance abuse, although he has used prohibited drugs in the past and had some difficulties with alcohol. He is summarised as being a man of "low normal intelligence" and he is said to have been involved in conduct which is "uncharacteristic".
It is said by the psychologist based on the history provided to that person that he was involved in this offending to help his friend "but also (for) financial opportunity and (by his own admission) a modicum of greed". It is said that at the time of the offending he was drinking large amounts of alcohol and small amounts of cocaine. That may be the case that from time to time over this period of time being Christmas he abused large amounts of alcohol and occasionally used cocaine, but I heard no evidence in the telephone intercepts of any degree of affectation from drugs or alcohol and there is no suggestion in the surveillance evidence of him being relevantly affected by drugs at the time.
He is said to be psychologically stable, his condition of anxiety and any depressive symptoms are reactive to his custodial setting. There is no issue of any disability that would lessen any weight to be given to general deterrence. I do not believe personal deterrence is as significant in this matter as it might otherwise be given the absence of other criminal behaviours and the absence of prior criminal convictions. I have read his letter to the Court. The effect upon him of his custody and the effect on his family and I accept that it is difficult for him. He accepts that he has let his partner down and she is less than pleased with his arrest in relation to the current matters.
His partner has written a lengthy letter to the Court which I have taken into account. She speaks highly of his character particularly his support for her and their son, the strong bond between the prisoner and his mother and the effect upon him of her death in early 2007, with which I can empathise, but then again he had to deal with his mother's death at a time when he was a mature and established man, not a boy or a young man making his way in the world. She also spoke of the effect upon his family of the great financial crisis as it is sometimes called and it would seem that that has strongly impacted his father.
She says that the incarceration of the prisoner has affected her and her son adversely, it does for everybody who is related or connected with a person in custody, particularly a provider. But I accept the prisoner has a strong bond with his son and I accept the prisoner has in the shape or form of his partner and his son, had good reason to avoid criminal offending. He can be guaranteed and assured that his conduct will be under close surveillance in the years ahead.
I have other references one from the mother of the partner of the prisoner and I have taken that material into account. There is a character reference from a friend who speaks of him being a personable man with strong family ties. I also have a reference from a man called Bill Filippopoulos(?) who has known the prisoner for twelve years. They have children of the same age and he speaks well of the character of the prisoner as he understands it. Another reference from Mr Chris Cochrane, a person who has known the prisoner since 1993 speaks of the positive qualities of the prisoner as an employer and a businessman.
The prisoner's counsel gave me some statistics but they are of very limited value. They solely deal with issues of non‑parole periods in respect of offences of supplying not less than a commercial quantity of ecstasy. They do not reflect upon matters taking into account matters on the Form 1 and the facts of the matter are as I tried to explained to counsel for the prisoner, without knowing other figures for the head sentences related to the non‑parole periods that information is of little value.
I need to just quickly deal with some specific matters that were raised by counsel for the prisoner. First of all there is the issue of discount for the plea of guilty, I have referred to the decision of Gorman. The circumstances of entering the pleas in Gorman are somewhat different than the circumstances here. The offences to which Gorman pleaded involved consideration of somewhat different particulars given the complexity of the facts in that matter than apply in this particular case.
The truth of the matter is the prisoner in respect of the offence to which he ultimately pleaded, could have offered to plead to that offence at any time. The lesser will always be included within the greater and although charged with supplying a large commercial quantity of a particular drug it is always open to an offender to offer to the Crown to plead to the lesser offence. I note in relation to the matter to which the prisoner pleaded guilty, and negotiated the matter to be put on the Form 1, that he prisoner was committed for trial in relation to that matter in circumstances where he was committed for trial in relation to offences a number of which he has been acquitted of by jury. I appreciate the complications of negotiating pleas in circumstances where there other charges for committal which ultimately lead to verdicts of not guilty.
But on the other hand of course this matter came before me as a joint trial. The prisoner's application initially was only to separate some of the counts from others. I think the decision I made ultimately that it should be 3 separate trials was something of a surprise even to counsel for the prisoner bearing in mind that his not what he initially asked for in his written submissions. But that having been said, with the matter before me back in mid‑December of 2016, the prisoner of course not knowing whether he was going to be acquitted of matters in the first trial or the second trial, could have, in respect to the matters he ultimately pleaded guilty to, offered to plead to those matters even if it did not fully discharge the indictment.
I note in relation to the progress of the matter that after the prisoner was found guilty of count 3 in the second trial, the matter was still listed for trial in early February. I had to make special arrangements to list it in early February, I had to go and see the Registrar personally and say that because of the Christmas break I was not able to complete the three trials that I had ordered. If I had not been able to make those special arrangements for the prisoner he might have had to wait until May or June this year for that trial to be listed. But the Registrar agreed to put his trial in the list even though many other trials were listed on that date. As it turned out, the only further inconvenience to the Court was the day taken up with taking the plea. But as I have said in assessing the utilitarian benefit of the plea there was still that minor impact upon the listing of the Court.
So ultimately in all the circumstances I have concluded that a 15% discount should be available to the prisoner. It may well be with the new legislation contemplated by the government that the days of giving a discount of greater than 10% will soon pass once the matter has been listed for trial.
I have also had regard to the effect of delay as it was discussed in the decision of Blanco [1999] NSWCCA 121 and I have taken that into account. The prisoner in a range of ways has been left in a degree of uncertainty. There is also the issue raised by learned counsel by the prisoner of recognition of "withdrawal" as it has been suggested from the criminal enterprise in which he was involved by reason of the fact that Peovski and Mihelic were involved in criminal activity afterwards, apparently involving the same undercover officer although the precise details of that criminal activity were not made known to me. This is a matter discussed in the decision of Pickett [2010] NSWCCA 273. I have taken into account the fact the prisoner was not involved in that offending in his favour as showing the greater involvement of Mihelic and Peovski in the relevant criminal enterprise for which the prisoner is to be sentenced.
As to the issue of "withdrawal" I do not have positive evidence that the prisoner actually formally "withdrew". Whether Mihelic and Peovski just recognised the inevitable that they knew one another and they could deal directly with one another, and did not need to have a middle man involved, is something about which I can only speculate. But I am prepared to accept ultimately that there must be some degree of withdrawal albeit not as pronounced as perhaps suggested by counsel for the prisoner.
In Pickett the relevant principles were discussed by the Court. I particularly refer to what falls at [74] [75] [76] in which the Court adopted what Harrison J had said in the decision of Burns [2007] NSWCCA 228. I accept there being some evidence of the voluntary cessation of criminal activity, that it is a factor to be taken into account. There is a public policy to be served in providing encouragement to offenders to cease their criminal activities and of course specific deterrence is a matter that will be given less weight and it provides evidence of remorse, contrition and rehabilitation.
I am mindful of course that Harrison J uses words like "significant" and "little or no" weight and "strong" evidence of remorse, contrition and rehabilitation. Those qualifying adjectives of course more pertinently apply to positive evidence of a withdrawal as a deliberate decision which does not emerge necessarily in this case. But it is a matter I have taken into account in favour of the prisoner. In relation to the issue of delay I note what was said at Blanco [16] - [17]. With regard to Gorman I particularly note what was said by that Court at [62] - [64].
In sentencing the prisoner I am required to have regard to s 3A of the Act. There would be an element of general deterrence present. There is no reason to diminish the appropriate level of general deterrence by reason of any mental illness or disability. Of course there will need to be some degree of specific deterrence, but not as great as what otherwise might apply to other offenders involved in such offending bearing in mind the adoption of some of what was said in Pickett. There is a need to promote the rehabilitation of the prisoner. There is a need to make him accountable, to denounce his conduct and to give adequate punishment and I do not believe there is a need to protect the community from the prisoner. I note in relation to this matter that the drugs went to an undercover officer and thus they were not disseminated to the public, through no work of the prisoner I hasten to say nor Mr Mihelic but it is the fact that the risks of danger to the community was removed.
The issue of totality of criminality is required to be considered. I note what the High Court said in Pearce v R (1998) 194 CLR 16, particularly at [45], in fact in the decision of Gorman there is a particular discussion about totality of criminality. I am required to fix a particular sentence for the separate offences requiring specific sentences in accordance with Pearce v R (1998) 194 CLR 610 (at [45]). I am also required to have regard for example to what was said by Simpson J in Hammoud, [2002] NSWCCA 540. In this particular matter I am required to in my view fix not only separate sentences but give some degree of partial accumulation to reflect the totality of the criminality. Of course in Hammoud the error made by the sentencing judge was to fix entirely concurrent sentences.
With regard to s 21A of the Act, the objective facts I have already set out. Whilst there is some element of financial reward which may be an aggravating factor under s 21A(2) of the Act, the facts of the matter are that I have never seen a drug supplier who does so for altruistic purposes, it is very much inherently part of the activity but I am aware of the fact of course that there are some cases of course where the extent of financial reward highlights that as a particular aggravating factor under s 21A(2). This is not such a case.
With regard to mitigating factors under s 21A(3) there are many. In my view the prisoner's role was not that of a person involved in planned or organised criminal activity, he did not have any record of previous convictions. I am prepared to accept that he previously was a person of good character. I am prepared to accept that he is unlikely to re‑offend given the salutary effect of his time in custody. He has by reason of his family support good prospects of rehabilitation.
He has expressed remorse which I note but I could not conclude that remorse is relevantly a mitigating factor under s 21A(3)(i) in respect of the matters to which he pleaded guilty. There has been no expression of remorse for the matter for which he was found guilty, except no doubt he regretted being detected in respect of that offence. His plea of guilty in relation to one of the offences is a relevant mitigating factor, but he receives a discrete discount for that. The plea of guilty is some evidence of remorse I accept but not sufficient to make it a "mitigating" factor under s 21A(3)(i).
I have determined that there are "special circumstances" in the fixing of the relevant non‑parole period. Partial accumulation itself is a special circumstance but also in my view there is a need for an extended period of supervision to assist the prisoner to adjust to community living, to have the benefit of direction by the parole authority in relation to matters concerning his association with others. He may need some assistance in relation to drug and alcohol consumption but he certainly is not a person who I would have regarded on the evidence available to me as addicted either to drugs or alcohol.
The issue of his release at the conclusion of his non‑parole period of course will be a matter for the Parole Authority. That is a matter that I specifically addressed to the prisoner when I spoke to him before I commenced my remarks on sentence. I would ask that what I addressed to the prisoner be included within these remarks on sentence. Can you stand up Mr Sikos.
In relation to the offence on the indictment of 6 February 2017, count 1 you are convicted. Taking into account the matter on the Form 1, you are sentenced to a term of imprisonment that consists of a non‑parole period of two years, three months to commence on 9 August 2015 and to expire on 8 November 2017. The balance of the sentence is two years, five months. That is to expire on 8 April 2020. The total sentence is four years and eight months. I find special circumstances, you will be eligible for release to parole on 8 November 2017.
In respect of count 3 on the indictment dated 12 December 2016, you are convicted. You are sentenced to a term of imprisonment of two years to commence on 9 February 2015 and to expire on 8 February 2017. I do not propose to fix a non‑parole period for that matter because I have fixed a non‑parole period partially accumulative upon that sentence. You can take a seat sir, thank you very much.
Yes is there anything you wanted to raise, any matter you wanted to raise Madam Crown?
WHEATLEY: No your Honour.
HIS HONOUR: Any matter you wanted to raise?
HEFFERDEN: No your Honour.
HIS HONOUR: Right well Mr Sikos as the orders stand at the moment, subject to the Crown's right of appeal and your right of appeal, you will be eligible for release to parole in November this year. That would mean I would have thought self‑evidently that if you are released to parole you will be allowed into the community before Christmas of this year with your family. But whether you are released at the end of that non‑parole period depends both on your appeal rights, the Crown's appeal rights and of course the decision of the Parole Authority. Thank you very much, you are excused.
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Decision last updated: 06 September 2017