R v Simonovski [2020] NSWDC 848 | Case summary

District Court of NSW|2020-08-24|Before: Mr P

Judgment

The offender comes before the Court for sentence having been found guilty by a jury of deemed supply of a prohibited drug, namely, methylamphetamine, in an amount being less than a commercial quantity. This is conduct contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The offence carries a maximum period of imprisonment of 15 years, with no standard non-parole period.
The offender also asked the court to deal with two related back-up offences pursuant to s 166 of the Criminal Procedure Act 1984. These are: 1. Possessing a prohibited drug (0.15g of methylamphetamine); and 2. Dealing with the proceeds of crime, being the sum of $1,069.25.
These offences are Sequences 2 and 4 respectively on the Certificate attached to the Crown sentence bundle. I shall return to the s 166 offences later in these reasons.

Agreed Facts

The parties were agreed on certain facts which must be attributed to having been found by the jury. Those facts are relevantly summarised as follows.
At around 10pm on 17 May 2019, the offender arrived at the Value Suites at 18 O'Riordan Street, Alexandra. She was driving a silver Audi. She parked the car on the street outside the apartments. Shortly after arriving, a man named Luke Trott arrived in a red Toyota Camry. With him was another man named Jake Milson. Mr Trott parked on the footpath outside the Value Suites.
CCTV shows that the offender and Mr Trott met at the red Toyota, before together entering the reception area of the Value Suites, where they checked in to a room for two nights. Luke Trott handed over cash to pay for the room, with the offender also contributing to the price of the booking. Mr Trott also provided a card in his name. The offender had pre-booked the room online, using an old credit card.
At around the same time, Mr Milson entered a construction site next door to the Value Suites.
The offender and Luke Trott were assigned to room 201. They went outside to collect some bags. When they returned to the Value Suites; the offender was carrying a white duffle bag, and Luke Trott was carrying a green Woolworths bag.
At about 10:30pm, police responded to a police radio call concerning a report of someone trespassing at the construction site at 16 O'Riordan Street. This person was Jake Milson, who was arrested shortly after police arrived. When police arrested Mr Milson at the construction site, they located the keys to the red Toyota on him.
Whilst police were arresting Jake Milson, Mr Trott came down from the apartments and walked towards the red Toyota, where other police were standing. Luke Trott spoke with those police briefly, before opening the door to the silver Audi, and returning to the apartments.
Police searched the red Toyota and located, amongst other items, Bail slips in the name of Luke Trott. The police conducted checks which revealed that the person who had earlier spoken with police and opened the door to the Audi was in fact Luke Trott, and that he was in breach of his bail conditions.
Police attended on the Value Suites reception where they were informed that Mr Trott had earlier checked in with a female, and that they had been assigned room 201. Police attended room 201 and knocked on the door. The offender answered the door, and police asked to speak with Luke Trott. Mr Trott came to the door and was escorted from the room by police, and then arrested.
Police then activated a body worn camera, which was played during the trial. That video showed that the offender allowed police into the studio apartment, where she spoke to them.
The offender lied to police, telling them her name was Tiffany Simonovski, and that she had been driven to the Value Suites by a friend, who she named as Ash Foster. The offender told police that she had booked the room online and that she paid for the apartment, however it was booked in Mr Trott's name, since she didn't have any ID documents.
Whilst police spoke with the offender, they noticed a set of electronic scales on the bedside table, along with some empty freezer bags. The offender told police that the scales belonged to her, saying "They were in my bag, which I grabbed to use today, and I haven't used it in years."
Police asked the offender about some cash in a Gucci bum-bag located on the bed. The offender stated that the cash was hers, and that her parents had given it to her to pay for their rent.
Police asked the offender to empty her pockets. Although she said there was nothing in her pockets, when she turned them out, inside one of her pockets was a clear resealable bag containing 0.15 grams of methylamphetamine. Also inside one of her pockets was a syringe, together with a red OPPO brand mobile phone.
Upon revealing the drugs, the offender told police her real name. As police escorted her from the room, they told her that the room would be searched. In response, the offender told police: "There's nothing here". The offender was arrested and taken to a police station.
Police applied for and were granted a search warrant which allowed them to search room 201. Police guarded the room overnight until officers returned the next morning to search the apartment.
Upon conducting that search the police found within the ceiling cavity of the bathroom a Sistema brand plastic container, inside of which was one GLAD brand resealable bag which contained a quantity of methylamphetamine or "ice", 3 knotted freezer bags also containing ice, and near the container the police also located a red OPPO brand phone box, which had inside of it multiple small empty plastic resealable bags.
After police finished searching the apartment, they searched the silver Audi, in which the offender had arrived the night before. Within the Audi the police found a small clear resealable bag containing methylamphetamine.
A male's DNA not belonging to either Trott or Milson was detected on the resealable bag. Documents in the offender's name were also found in the car, along with further small, resealable bags.
The substance located inside the bathroom ceiling cavity was later tested and found to be a total of 90.9 grams of methylamphetamine. The street value of the drugs, if sold in 'points', was estimated to be between $91,100 and $70,100. The purity of the drugs tested ranged between 75.5% and 76.5%.
Items including the Sistema brand container which housed the drugs, and the phone box containing the resealable bags, were tested for fingerprints and DNA.
Evidence was called at trial by a fingerprint expert to the effect that multiple fingerprints belonging to the offender were located on both of those items, as well as on the electronic scales which were next to the bed. DNA testing was inconclusive.
A total of $1,069.25 was located in room 201.
The parties were also agreed that it should be inferred that the jury found that the offender was guilty of an offence of joint possession for the purpose of supply with another person, namely, Luke Trott.

Objective Seriousness

The parties did not significantly differ on the principles to be applied in relation to offences of this type, nor indeed their application.
Personal and general deterrence loom large as factors in the sentencing process pursuant to s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Act"), as does community protection.
The quantity of drug involved is important, but it is not a determinative factor. The purity of the drugs involved is also important.
The actual role of the offender in the offending behaviour is important, as distinct from any label which may be placed upon it.
The Crown characterised the joint operation of the Offender and Trott to be that of conducting a mid to low level drug supply business. I did not understand the offender to put this in issue, though she did submit based upon her own evidence at trial, that hers was a role secondary to Trott's. I accept that this has been established on the balance of probabilities. The evidence does not permit a more definitive explanation of the offender's role.
The parties were agreed that the quantity of the drug involved (90.9 grams) was significant, but also were in agreement that it was considerably less than the 250-gram threshold for a commercial quantity of the drug. The purity of the drugs was also relevantly high, being, as I have previously indicated, between 75.5% and 76.5%.
The parties were also agreed that there was a limited degree of planning involved which was evidenced by: 1. The hiring of the serviced apartments; 2. The booking of the room; 3. The presence of the scales; and 4. The presence of packaging materials.
It was also agreed that the offender's offending conduct was motivated by her need to feed her own significant methylamphetamine habit. This is a factor which lowers her moral culpability.
The Crown submitted that the offence fell to be determined at the midrange of objective seriousness. Ultimately, the offender did not demur from this assessment, which I accept.

The Offender's Circumstances

The offender was born on 26 January 1998. At the time of offending, she was only 21 years of age.
Unfortunately, by the time of offending, the offender had already acquired a quite significant criminal record, which can be summarised as follows: 1. 3 offences of drug possession; 2. Nine convictions for dishonesty offences; 3. Two convictions for violence offences; and 4. Three convictions for driving offences.
These are matters which disentitle her to leniency.
At the time of the offending, the offender was also the subject of four Intensive Correction Orders.
Thus, the offence was committed on conditional liberty, which is in itself an aggravating factor.
It was common ground that the offender has significant drug dependence issues. Unfortunately, the offender has demonstrated a lack of motivation to undertake the drug intervention programs in the community, according to the Sentence Assessment Report which was tendered in the Crown case. The report does reveal, however, that the offender had expressed some interest in participating in a custodial based Intensive Drug and Alcohol Treatment Program.
The offender has admitted to Community Corrections that she has continued drug use in gaol, and expressed a reluctance to cease illicit drug use.
She told the Community Corrections Officer who was conducting her assessment that at the time of her offending she was injecting methylamphetamine on a daily basis.
Ultimately, that report assessed her risks of reoffending as being in the medium range.
The offender has shown no remorse. Indeed, she continues to maintain her innocence. This is of course not an aggravating factor, but by the same token it cannot be brought into account as a mitigating factor.
Given the offender's drug dependency issues, together with her stated lack of motivation to address them, and her criminal record which bespeaks a blatant disregard for the law and court orders, I find that she has poor prospects of rehabilitation, and is in the medium range risk of reoffending.

Special Circumstances

The offender submitted that I should find special circumstances due to the need for the offender to undertake rehabilitation in the community. Normally that would be a cogent submission in relation to an offender of this age. However, given her stated disinterest in undertaking such programs, I do not consider it appropriate to be taken into account as a special circumstance.
The offender also suggested the following as special circumstances: 1. The age of the offender (22 years); 2. The risk of institutionalisation at an early age; 3. The severity of her addiction to methylamphetamine; 4. The need for drug rehabilitation upon release; 5. The need for extended supervision upon release; and 6. The prospect of lengthy accumulated sentences.
The Crown submitted that properly understood there were no special circumstances present in the current case, subject to one caveat. This caveat was that the complex problems surrounding the commencement date of any sentence which might be imposed in and of itself may constitute a special circumstance. I agree with the Crown's submission, and I agree with the caveat. I so find.

Time Served / Appropriate Commencement Date

As I have just indicated, a fundamental difficulty in this matter is determining an appropriate date for the commencement of any sentence. This is due to the complex matrix of revocations of non-custodial orders, service of parole balances, sentences for other offences, and periods spent in custody for this and other offences.
The pre-sentence custody situation can, I believe, be summarised as follows.
The offender has been in custody since 18 May 2019 on a variety of charges, other than the period 28 January 2020 to 24 March 2020, when she was on bail.
Her custody from 18 May 2019 to 4 December 2019 has been in respect of this offence and other offences.
Her custody from 4 December 2019 to 28 January 2020 was solely attributable to this offence.
On 28 January 2020 she was granted bail, which was revoked on 24 March 2020.
Her custody from 24 August 2020 to date is in respect of this offence and fresh offences.
The pre-existing offences were offences involving dishonesty, and the fresh matters were serious driving offences involving a police pursuit.
Ultimately, it was submitted by the offender that any exercise in identifying precise dates in custody referrable to the instant matters is subject to an unacceptable degree of artificiality, as the common thread running through each and every period spent in custody by the offender is that they were all a direct result of her addiction to methylamphetamine.
The offender submitted that the issue of a precise and direct reference of time in custody to the instant offending largely falls away given the totality principle in its application to situations where an offender is serving an existing sentence when being sentenced by a second court (Mill v The Queen (1988) 166 CLR 59 at 66; [1988] HCA 70; Choi v R [2007] NSWCCA 150 at [157]).
It was common ground that there vests in the Court a general discretion as is coincident with the interests of justice in determining an appropriate commencement date (Rafaieh v R [2018] NSWCCA 72 at [48] per Adams J, Hoeben CJ at CL and Johnson J agreeing; see also R v Karageorge [1999] NSWCCA 213 generally).
It was conceded by the offender that some degree of accumulation would be appropriate to reflect the totality of the accused's offending, in accordance with the observations of Howie J in R v Cahyadi [2007] 168 A Crim R 41 at [27].
The offender went on to submit however, that any degree of accumulation must be "a just and appropriate measure of the total criminality involved" (Postiglione v The Queen (1997) 189 CLR 295 at [307-308] per McHugh J. See also the discussion of the applicable principles by Hulme J in R v Van Ryn [2016] NSWCCA 1 at [228]-[230]).
I accept the offender's submissions, which were not put into issue by the Crown.
I have taken the principles to which I have earlier referred into account in arriving at what I believe to be a just commencement date, taking especially into account issues of totality, and have not attempted any form of arithmetic precision in so doing.

Gaol the Only Option

It was common ground between the parties that gaol was the only conceivably appropriate punishment.
This could hardly be gainsaid, and I unhesitatingly accept that this is the case, and so find for the purposes of s 5 of the Crimes (Sentencing Procedure) Act 1999.

S 166 Offences

As I have earlier noted, the offender asks the Court to deal with two related offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986. These are: 1. Possessing a prohibited drug (0.15g of methylamphetamine); and 2. Dealing with the proceeds of crime (being the sum of $1,069.25).
The Crown submitted that these offences fell to be determined at the low range of objective serious.
The Crown's submission on objective seriousness was based on the following: 1. That the amount of the drug involved in the possession offence was below the small quantity threshold, and 2. That the amount of money seized in relation to the proceeds of crime offence was well under the $100,000 limit for the charge.
I did not understand the offender to dispute the Crown's characterisation of the objective seriousness of these offences, with which I agree.
The offender submitted that she ought to receive a 25% discount to any sentence which might otherwise be imposed in relation to the s 166 offences. It was put that, despite the fact that no formal plea had been entered on earlier occasions, the offender has made no active attempt to defend them. As such, the offender submitted that the situation ought to be equated with an early guilty plea. The Crown did not make submissions to the contrary effect.
I accept the offender's submissions, and I shall afford to the offender a 25% discount to her sentence on the s 166 matters.
Further, I have also previously made an order for the confiscation of the funds the subject of the proceeds of crime offence, which order was sought by the Crown. This order was not opposed by the offender.

Sentence

In setting forth the following sentences, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offences. Aggravating and mitigating factors to which I have referred have also been taken into account.
In arriving at the following sentences, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51].
Natalie Simonovski, stand. 1. In respect of Count 1 on the Indictment, you are sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years. 2. I direct that such a term of imprisonment shall commence on 24 June 2020 and that the non-parole period shall expire on 23 June 2022, with the balance to expire on 23 June 2023. 3. You are convicted of the offences on the s 166 certificate. 4. In respect of Sequence 2 on the s 166 certificate, being the possession of a prohibited drug, namely 0.15g of methylamphetamine, you are sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021. 5. In respect of Sequence 4 on the s 166 certificate, being the dealing with the proceeds of crime in the sum of $1,069.25, you are sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021.

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: 16 February 2021

R v Simonovski

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