HIS HONOUR: Andrew Spiroulias stands for sentence as a consequence of pleading guilty to a charge that between 23 August 2019 and 23 September 2019, at Sydney in this State, he did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, namely methamphetamine and heroin, for financial or material reward. That is an offence contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units.
The offender also asks me to take into account a large number of other offences on a Form 1. There are two offences of supplying a prohibited drug in excess of the indictable, but less than the commercial quantity, one count of possessing property suspected of being the proceeds of crime, namely $4,605 in cash, four counts of possessing a prohibited drug and six counts of possessing prescribed restriction substances contrary to the provisions of the Poisons and Therapeutic Goods Act 1966.
The offender was born in November 1975. He is currently 44 years old. He was arrested on 2 October 2019 at the age of 43.
In July 2019 Northern Beaches detectives commenced a strikeforce to investigate the ongoing supply of prohibited drugs in the Northern Beaches and the lower north shore of Sydney. They identified, but exactly when is unknown, the offender as being actively involved in supplying heroin and methylamphetamine to various customers in North Sydney and Narrabeen. Police obtained a warrant to intercept mobile communication services that were being used by the offender. When those warrants were obtained I do not know, however they lawfully captured conversations which are part of the agreed facts. Those conversations included conversations with known associates and unknown associates regarding the quality of prohibited drugs, their weights, monetary values and ability to purchase larger amounts.
In his telephone conversations the offender referred to supplying prohibited drugs as his "work". The offender was monitored discussing the money he made as a result of his drug supply activity. The offender also cautioned his customers about being careful in order to avoid detection by the police. The agreed facts tell me that the offender would himself contact customers or be contacted by them. A meeting would be arranged for the sole purpose of supplying prohibited drugs. The offender had customers meet with him in public places in the lower north shore and northern beaches. Those places included petrol service stations, supermarkets, shopping centres, hotels, bars, train stations, food outlets and sometimes on a public street. Some of these meetings were actually under police surveillance.
As is fairly normal, the offender, when talking with customers or others about drug supply, would use cant terminology. The word used for heroin was "slow" and the words "cold" or "flow" were used to describe methylamphetamine. The offender sometimes sold 1 ounce amounts of drugs which he would describe as a "full" or a "big one". Half an ounce was merely referred to as a "half", and a "ball" referred to 3.5 grams of the drug, and "HB" short for half ball, referred to 1.75 grams of the drug. Money was sometimes referred to as "papers". The offender was supplying heroin and methylamphetamine in quantities which ranged between 1 ounce or 28 grams and 1 gram.
When supplying prohibited drugs the offender did not use his own motor vehicle, but a hired motor vehicle. In order to carry out his business, the offender used three different telecommunication services in an attempt to avoid detection by the police.
The offender conducted two supplies which were intercepted by the police. The total quantity of drug supplied on these two intercepted transactions was 56.03 grams of heroin, for a total financial reward of $14,000. The first supply was on 4 September 2019. The offender agreed to meet with a customer at McMahons Point. The offender supplied his customer with an ounce or 28 grams of heroin for $7,000. Following that transaction, the police intercepted the customer and found the 28 grams of heroin on his person. The customer told the police that he paid $7,000 for the drug. The second intercepted transaction was on 8 September 2019. The offender and his customer agreed to meet at Neutral Bay. Again the offender supplied just over an ounce of heroin, again for the sum of $7,000. Again the customer was intercepted. The police found 26.03 grams of heroin on him and he admitted that he paid $7,000 to purchase that quantity of heroin.
On 12 September 2019 the offender activated a new mobile telephone service due to the fact that the earlier transactions of 4 and 8 September had been intercepted. Based on telephone interceptions the offender supplied 66.5 grams of methylamphetamine and 5.25 grams of heroin to customers on no less than six occasions for financial reward during the 30 day offending period. That period was between 22 August and 22 September 2019. On 23 August 2019 offender supplied 28 grams of methylamphetamine for $3,800. On 25 August 2019 he supplied to the same customer a further 28 grams of methylamphetamine. On 3 September 2019 the offender supplied 3.5 grams of methylamphetamine. On 6 September 2019 the offender supplied 3.5 grams of heroin. On 13 September 2019 he supplied 3.5 grams of methylamphetamine and on 13 September 2019 he supplied 3.5 grams of methylamphetamine and 1.75 grams of heroin.
On 2 October 2019 the police executed a search warrant on a flat at 26 Napier Street, North Sydney. That flat was in the possession of the offender's girlfriend/de facto partner, Ms Cobie McLister. She was asleep in bed at the time of the execution of the search warrant. The offender was not at the premises at the time. The police found a shoebox on the dining room table which contained various freezer bags containing a crystal substance or white powder and three sets of digital scales. An analyst's certificate confirmed that within the shoebox was 13.85 grams of methylamphetamine and 26.15 grams of heroin. Located within a bedside table in the bedroom police found in cash $4,605, which is admitted by the offender to be the proceeds of crime. As is typical with drug supply, the cash was in either $50 notes or $100 notes, although one of them must have been a $5 note.
In addition, police found the following prohibited drugs or prescribed restricted substances in the apartment: a further 1.35 grams of methamphetamine, a further 0.52 grams of heroin, 23.35 grams of methandienone in the form of 94 blue-coloured pills, 29 white tablets which were found to be prescribed medication alprazolam, commonly known as Xanax, which is often used by those using drugs, a number of strips of buprenorphine weighing in total 0.23 grams, 16 glass vials containing 97.9 grams of testosterone, 3 glass vials containing 25.4 grams of nandrolone, 4 glass vials containing 27.5 grams of trenbolone, 2 glass vials containing 9.8 grams of stanozolol, 71 pink round tablets and 104 red and white capsules which when analysed contained 15.85 grams of oxymetholone, and 169 white round tablets which when analysed contained 17.12 grams of oxandrolone.
I should point out that there is no evidence that the offender was ever involved in selling steroids, but he had an interest in becoming a personal trainer and had a long term interest in opening a gym and they may have been part of his workout routine.
Later on that day the police approached the offender in Berry Street, North Sydney, and he was arrested. They located on his person 5 mobile telephones, a set of keys in his possession for the unit in Napier Street, and a key to a hire car which was parked directly outside the block of flats in Napier Street. After being arrested the offender was offered an opportunity to participate in an electronically recorded interview, but declined to participate.
This is not the first time that the offender has committed an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985. On 5 November 2013 he was sentenced by Norrish DCJ for two offences contrary to the same provision. On 26 May 2017 he was dealt with by Armitage DCJ for offences under s 25(1) and s 193C of the Suspected Proceeds of Crime Act.
Before I turn to those very relevant sentences, I should indicate the offender has a lengthy criminal history. The easiest thing to do is to quote from how it was summarised by Norrish DCJ in his judgment on 5 November 2013. His Honour said this:
"The prisoner was born on [redacted] November 1975. He will thus turn 38 at the end of this month. He has a criminal history that goes back to 1994 and it must be said at the outset that his criminal history does not entitle him to any leniency, although, it must also be said, judging from the jurisdictions in which he has appeared and the sentences imposed, that the matters with which I am concerned now are the most serious offences for which he has been convicted.
He first appeared at the Sutherland Local Court in 1994 and was convicted of common assault and offensive language for which he was fined. He then, in the same year, was convicted of malicious damage and offensive language. In 1995 he was convicted of driving in a manner dangerous, resisting arrest, malicious damage, and also convicted of driving while licence cancelled in an earlier time in 1994. In 1996 he was convicted of offences relating to the possession of prescribed restricted substances, possession of a prohibited drug, cultivating prohibited plants and possession of prescribed restricted substances which were offences taken into account on a Form 1 when he was dealt with in the District Court. He was dealt with in the District Court in 1997 for supplying a prohibited drug on a bench warrant and he was sentenced to three months imprisonment. I have no details of what drug was supplied directly from him.
I note, although the criminal history is almost unintelligible, he had a matter of supplying a prohibited drug, apparently taken into account on a Form 1 with the other matters I have identified. He was convicted in July 1997 for causing injury with intent to influence a witness and sentenced to a minimum term of nine months with an additional term of 15 months. Apparently there were other matters taken into account on a Form 1. He was convicted of driving offences in the early part of the century, including drive in a manner dangerous or a speed dangerous to the public. He was again convicted in 2004 of driving in a manner dangerous or a speed dangerous to the public. He was convicted of possessing prohibited drugs and possessing restricted substances in 2004, and having goods in his custody suspected of being stolen or unlawfully obtained in 2006 for which he was imprisoned.
At the Manly Local Court he was sentenced on 13 May 2008 for being armed with intent to commit an indictable offence. He received a period of imprisonment of 20 months with a non-parole period of nine months, and he was ordered to undertake residential drug rehabilitation as directed by the Probation and Parole Service. He had earlier, three months before, been convicted of making knowingly false or misleading statements and dealing with property suspected to be the proceeds of crime for which he was sentenced to six months imprisonment. At the Manly Local Court he was also convicted of common assault and sentenced to 12 months imprisonment.
At Hornsby Local Court in April 2011 he was convicted of possessing a prohibited drug and supplying a prohibited drug, for which he was respectively sentenced to six months imprisonment. He was also convicted of dealing with property suspected to be the proceeds of crime and sentenced to six months imprisonment. They are the fingerprinted matters. The non-fingerprinted matters include convictions for common assault in 2006 for which he received a s 9 bond, destroying or damaging property for which he received a s 9 bond. He was convicted in his absence of using a carriage service to threaten to kill another person or other persons, there were nine counts of that offence and he was ultimately sentenced at the Sutherland Local Court to two months imprisonment."
His Honour then expressed a lament for the state in which the criminal histories were presented to the bench. I am pleased to advise that things have improved since November 2013, but again there is no attempt made to put everything in chronological order such that the non-fingerprinted matters are within the fingerprinted matters.
The two offences under s 25A(1) of the Drug Misuse and Trafficking Act 1985 for which the offender stood for sentence before Norrish DCJ were of supplying heroin. That offence occurred between 22 December 2011 and 20 January 2012. The second offence occurred between 21 January 2012 and 9 February 2012, and was again for the supply of heroin. At the time the offender asked his Honour to take into account a number of matters on a Form 1. They were resisting police, possessing 0.15 grams of methylamphetamine, dealing with the proceeds of crime, on this occasion only $157.85, and having goods in his custody reasonably suspected of having been stolen or unlawfully obtained, namely a diamond.
Again this was drug selling detected by Manly detectives in the Manly and Northern Beaches peninsula of the Sydney area. On that occasion the offender was using four different mobile services, two of which were in his possession at the time of his arrest. On these occasions, however, the offender was not using a hire car, but was catching public transport between Redfern, the Sydney CBD and Cabramatta, as well as on the Northern Beaches. Commencing at the foot of p 3 of his Honour's reasons he said this:
"Annexed to the statement of facts are the list of what are described as transactions conducted by the prisoner covered by the first charge. During this time he made a number of sales as is self-evident. On 23 December, for example, he made 28 sales to various purchasers. Quantities sold during the period range between 0.05 grams to 0.2 grams...
During this period the prisoner supplied an approximate total of 22.15 grams of heroin for approximately $20,500."
His Honour pointed out the second offence followed the same pattern. On 31 January 2012 the offender made 17 sales to various customers. Quantities of heroin sold during the second period ranged between 0.05 grams and 0.04 grams, although that may be an error in his Honour's judgment. The total supply during the period of the second offence was 14.45 grams of heroin for approximately $14,000.
His Honour imposed an effective head sentence of five years nine months, with a non-parole period of three years and nine months. That sentence commenced on 9 February 2012. His Honour clearly found special circumstances, as his Honour pointed out, commencing at the foot of p 21 of his reasons. He said this:
"However, I am satisfied in the context of all the evidence that there are special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. There will be a partial accumulation of the sentence for sequence 2 upon sequence 1. That itself is a special circumstance. There is a need to adjust the relationship of the non-parole period to the balance of the sentence to give the prisoner an extended period of supervision to adjust to community living and to receive supervision in the community to assist him if he is so desirous of pursuing it and drug rehabilitation and counselling. That is a matter for him and I note he has past attempts have been unsuccessful as the facts of this matter establish."
Pursuant to the orders made by Norrish DCJ, the offender became eligible for release on parole on 8 November 2015. He was actually released on 8 November 2015 on parole, his last place of imprisonment being the Mannus Correctional Centre, which is in fact a farm on the western slopes of the Snowy Mountains and is perhaps one of the most salubrious correctional places in which to be incarcerated.
However, within six months of his release on parole the offender committed the offences for which he stood for sentence before Armitage DCJ on 26 May 2017. I do not have his Honour's reasons for judgment, apparently they have not been taken out. I do, however, have the agreed facts. Those recite that the principal crime to which the offender pleaded guilty was of supplying a prohibited drug, namely 8.61 grams of methylamphetamine. He asked his Honour to take into account on a Form 1 another supply of 5.3 grams of heroin and dealing with the property the suspected proceeds of crime.
The offence occurred 16 April 2016 in Military Road, Mosman. It is clear that the offender was supplying drugs. When the offender realised that he was under suspicion, he jettisoned a white bag that contained a small amount of powder. The plastic bag contained three smaller plastic bags, each containing methylamphetamine. It also contained a paper bag containing 29 small bags of heroin. The drugs were analysed and found to be 5.38 grams of heroin and 8.16 grams of methylamphetamine. A search of the offender's person found $2,200 in $50 notes, a black wallet containing $2,100 and a total of eight mobile phones in his pocket and in a bag he was carrying. That suggests that he was conducting a drug dealing exercise. As I earlier mentioned, his Honour imposed a three year sentence but found special circumstances and imposed a non-parole period of 18 months. Under that order the offender became eligible for release on parole on 23 July 2018. He was, in fact, released on 23 July 2018 on parole.
The head sentence imposed by Armitage DCJ concluded on 23 January 2020, but of course during that period on parole the offender breached the parole by committing the current offences. Although he was arrested on 2 October 2019, the head sentence for the earlier sentence expired on 23 January 2020 so that the period between 2 October 2019 and 2 March 2020 represents the balance of the parole period under the order made by Armitage DCJ as administered by the Parole Board.
The only reason that the parole was revoked was obviously the commission of these offences. I have a discretion as to when to start the current sentence and I suggested that it might be halfway through the period, and I do not believe there to be any dissent from the proposition that I could commence this sentence on 1 January 2020.
On one view of it the offender must be seen as a recidivist drug dealer who has committed similar offences for which he has been earlier sentenced and on each occasion breached his parole. The fact that he has breached parole does not augur well for him and the fact that he has been given, to an extent, leniency in the past does not again augur well for the current sentencing exercise.
However there have been some positive developments. As I have already mentioned the offender is currently 44 years old. He was born in Australia and grew up in the Earlwood/Bexley area. His heritage is obviously Greek. He had what would appear to be a normal childhood and upbringing, living with his parents and an older sister. His family have been supportive of him throughout his life, despite his lengthy criminal history. His background was described as normal and free of any harmful experiences or trauma.
He went to Kingsgrove North High School until year 10 and then decided to find work rather than to continue his secondary education. According to a history obtained by Ms Anica Spatz, a psychologist who interviewed him on 20 August 2020, the offender built positive relationships at high school and had no academic or behavioural problems. However, Ms Spatz took this history about the offender's employment:
"Looking at his employment history, Mr Spiroulias worked on and off with his father and in other short-term jobs. He had been unable to maintain long-term employment or build a career due to his frequent incarcerations. In recent years, he intermittently worked in a Greek restaurant of a family friend in Oxford Street, Sydney. He stopped working in the restaurant a couple of months prior to his arrest because Mr Spiroulias did not want the family friend to know about his drug use and drug dealing."
The history goes on to record that nevertheless the offender believes that he might be able to again find work at that restaurant on his release from custody.
Ms Spatz also obtained a history that several years ago the offender completed a Certificate III course in Fitness but failed two of the subjects. The offender plans to reattempt the completion of that Certificate, leading to potential job opportunities as a gym instructor, and, if he continue with his education, as a personal trainer. That is his goal.
What has changed on this occasion, compared to when the offender was before Norrish DCJ and Armitage DCJ, is that the offender has now found a lady who is described as his partner. The offender has been in a relationship with Ms Cobie McLister for two and a half years. They met at Kingswood TAFE campus while they were studying Certificate III in Fitness. Ms McLister has three children aged between nine and 16 years, and Mr Spiroulias developed close connections with her children. According to the history given by the offender to Ms Spatz, Ms McLister's children write to the offender whilst he is in custody. Although they do not live regularly together and obviously have not since the offender was arrested, the nature of their relationship was described by Ms Spatz to be similar to a de facto partnership.
Ms Cobie McLister has never used drugs and her only criminal history is of being dealt with under s 10 by Arnott DCJ on appeal from the Local Court for giving some assistance to the offender when he was dealing drugs by taking a telephone call on his behalf. His Honour imposed a community release order for a relatively short period. The facts that Ms McLister is not a drug user and that she would certainly do everything in her power to protect her own children from any drug use by the offender, are positive things which ought militate against the offender's relapse into drug use.
The question that arises is why did the offender relapse to drug use on this occasion? That has been the subject of submissions and sworn evidence from Ms McLister. In August 2014 Ms McLister was diagnosed with a cancer adhering to the first metatarsal of her left foot. She underwent surgery which required the scraping of the cancer from that bone, but Ms McLister had a busy schedule and did not undergo the routine surveillance of that problem that her doctors prescribed for her. She was supposed to undergo testing in 2018, but was too busy to do so. Sometime in 2019 she noticed discomfort in her left foot again. After noticing the discomfort, on another day which appeared from her evidence to be the following day, she noted some discoloration of the skin in the area above the previous surgery: that is trophic change in the soft tissue above the first metatarsal of her left foot, no doubt on the dorsum of the foot.
Concern was expressed as to whether this might be a recurrence of the cancer. Ms McLister was encouraged by both the offender and her mother to have investigations. She contacted her treating orthopaedic surgeon, Dr Richard Boyle, whose rooms arranged for an MRI scan to be performed on 16 August 2019 and a PET scan on 30 August 2019. However, shortly after the MRI scan on the 16 August 2019 Ms McLister received a telephone call from Dr Boyle who advised her that there was concern shown by the MRI scan and he then organised for a ultrasound guided biopsy which was carried out on 4 September 2019. That led to a diagnosis of myofibroblastic sarcoma of the first metatarsal, which required 11 hours of surgery at Royal Prince Alfred Hospital on 14 October 2019, obviously after the offender's arrest.
It is very difficult to ascertain exactly when Ms McLister noticed symptoms returning to her left foot. It could have been July or it could have been early August. It is not known when she contacted Dr Boyle's rooms and what the waiting time was for the MRI scan. One will note that the MRI scan was performed on 16 August 2019 and the first recorded drug deal in the agreed facts was on 23 August 2019, meaning a week later. Ms McLister told me, and was not cross-examined to suggest otherwise, that immediately she noticed symptoms the offender assumed "a worst case scenario" and was unable to cope with the prospect of her having a recurrence of cancer in her foot.
The offender's case is that that caused him to decompensate, which led to a need for him to use drugs, and in order to obtain the wherewithal to support his own cocaine habit, he decided again to become a dealer in methylamphetamine and heroin. If there were but a day or two to wait to undergo the MRI scan and if the realisation that this could be the recurrence of cancer was also almost immediate, I find it difficult to accept that the offender was found to be dealing within a period of just over a week after the MRI scan. However, the time could have been longer. Furthermore, it might have been very easy for the offender to resume what he had been doing in 2011 and 2012 and also 2016 in the same area, again contacting perhaps old customers and contacting suppliers with whom he had been dealing beforehand.
Under the Evidence Act 1995 s 141(2) the Court is to find the case of the defendant in criminal proceedings proved if it is satisfied that the case has been proved on the balance of probabilities, that is, the offender only need prove this psychic trauma, as the reason for his relapse on the balance of probabilities. My initial scepticism has been tempered by the sworn evidence of Ms McLister and the uncertainty as to timing, which could have been clarified by evidence from the police, for example, when they first suspected that the offender was again dealing when they applied for a telecommunications interception warrant or the like, or by other evidence that could have been called by the offender, such as evidence from his mother or from perhaps Dr Boyle's rooms where a receptionist may have been able to say what the waiting time was for the performance of the MRI scan. Furthermore, the nature of the offender's relationship with Ms McLister indicates to me that she would not have tolerated the offender using drugs if there were no problem, if there were no precipitating reason for doing so. She made it quite clear that the offender's relapse was almost immediate on his assumption of the "worst case scenario" and one can see that it might be easy for the offender to resume old habits.
The difference here, of course, is we have a better excuse, if an excuse be required, for a drug addict to relapse, and we have a further reason for the offender to remain abstinent of drugs on this occasion when released from custody, the necessity staying abstinent from drugs to pursue his relationship with Ms McLister and her children. Ms Spatz's report makes it clear that the offender has been focussed on building a family and a future with Ms McLister and her children. Ms Spatz points to the fact that after avoiding commitment in relationships for extended periods of time, the offender has now settled into a highly supportive and future orientated relationship in which, according to the offender, there are plans for marriage and perhaps Ms McLister bearing the offender a child or more children. Whether Ms McLister's medical condition would permit that I do not know, however, there is now something positive in the offender's life that was not there when he stood for sentence before Norrish DCJ and before Armitage DCJ.
It has been submitted by the offender's solicitor that this case is "well below the midrange of offending". I cannot accept that. The offender resumed a practice that he had in 2011, 2012 and 2016, and he was actively involved in selling drugs. He must have sourced the drugs from somewhere, probably buying at a discount. He had a large amount of drugs that he supplied and a large number of drugs available to him at the time of the execution of the search warrant. The amount of cash found at Ms McLister's North Sydney flat is evidence of the success of the offender's criminal activity. While it is true that the offender was using drugs himself, the drugs he was using were cocaine and here he is selling both heroin and methamphetamine, exactly the same position as obtained in 2011 and 2012. The only thing that appears different between now and then was that the offender's quantity of drugs, quantity of income and the sophistication of the arrangement appears to have been more advanced.
I accept that this offence is below the midrange of objective seriousness but towards the midrange of objective seriousness, not at the bottom of the range but rather towards the top of that level. The offender cannot expect any leniency from the Court because of the recidivist nature of his drug dealing, the fact that he has been sentenced for similar offences in the past.
A submission has been put to me, which has validity, that there is a risk of institutionalisation. The submission is this:
"The offender was aged 19 years eight months and 21 days old on 10 August 1995. From that date until 29 October 2020 the offender has spent a total of 3,571 days out of 9,840 days in custody. This represents approximately 39% of his life since 10 October 1995. It is submitted that the offender is at a very real risk of institutionalisation and that this risk should be a factor taken into account by the Court on sentencing."
There certainly is that consideration to be taken into account. The other consideration to be taken into account is that the offender is currently 44 years old. To impose an overly long sentence would extinguish effectively the prospects of his pursuing his aim of completing his Certificate III in Fitness and going on to be a personal trainer, and would interfere with his ability to establish a marriage and perhaps sire children with Ms McLister.
I have come to the view, bearing in mind the maximum penalty of 20 years' imprisonment, the starting point for this sentencing exercise is a theoretic head sentence of seven and a half years imprisonment. That is to be discounted by 25% as agreed by the Crown because of the offender's early plea of guilty. That reduces the head sentence, with rounding, to five years and seven months. Applying the statutory ratio between the head sentence and the non-parole period, again with rounding, indicates a non-parole period of four years and two months.
Despite the fact that on two earlier occasions there have been finding of special circumstances and a breach by the offender of his parole, on this occasion there are clearly grounds for special circumstances, the need for rehabilitation, the need for supervision in the community to ensure that the offender does not relapse to drug use and in not imposing too lengthy a sentence and offering the offender the opportunity of getting on with a meaningful life before it is too late. In the circumstances I find special circumstances. I believe that the appropriate non parole period is three years and seven months, such that the offender will be on parole on this occasion for two years. I strongly recommend to Community Corrections that this parole period be strictly supervised, a submission that has been put to me by the offender's solicitor.
Andrew Spiroulias, on the charge that between 23 August 2019 and 23 September 2019, in Sydney in this State, you did on three or more separate occasions, during a period of 30 consecutive days, supply a prohibited drug other than cannabis, namely methamphetamine and heroin, for a financial or material reward, you are convicted. I sentence you to imprisonment. I set a non-parole period of three years and seven months commencing on 1 January 2020 and expiring on 31 July 2023. I impose a further period of imprisonment of two years to commence upon the expiration of the non-parole period and expiring on 31 July 2025. The total sentence is therefore five years and seven months, comprising of a non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. In passing that sentence I have taken into account all the matters on the Form 1.
There is something I should add. In his submissions Mr Blair, for the offender, pointed out that the Justice Legislation Amendment Act (No 2) 2019 has not yet been proclaimed, but it does make an offence under s 25A(1) one that could be dealt with in the Local Court. This appears to be an attempt to minimise the significance of the offence. However I point out that there are various degrees of offence against s 25A(1). For example, in the reasons of Norrish DCJ of 5 November 2013 at p 18, he said this:
"I have seen ongoing supplies of 18 year old Aboriginal kids in hotels in Wagga being asked by undercover police to find 'a point', not even having drugs on them, running off, getting a point, bringing it back, giving it to the undercover officer, doing the same thing three days in a row. This is far removed from that bare minimum of trafficking culpability."
I myself have seen the same minor offending in s 25A where an unemployed man, sharing a flat in a Housing Commission building in Waterloo, was made similar offers and went off and bought some drug from somebody else so he could onsell it, his interest in the supply being to merely keep a very small amount of the drug for his own personal use. There are certainly degrees of offending against s 25A(1) but this is not a minor example of it, that would be dealt with by the Local Court. I am confident that the Director of Public Prosecutions would not allow a case of this nature to be dealt with in the Local Court.
You want a confiscation order. Is it a drug confiscation or monetary confiscation?
STUECKRADT: This is a monetary confiscation order. The drug destruction order I understand should also be made, but that's not required, we don't require paperwork.
HIS HONOUR: I'll make them anyway.
I order that the prescribed restricted substances be destroyed.
I take it there's no objection, Mr Bair?
BAIR: No, your Honour.
STUECKRADT: I have short minutes of consent.
HIS HONOUR: All right, can you hand those up then?
STUECKRADT: Yes, your Honour. I apologise, I think the form says "registrar" where it should say "judge".
HIS HONOUR: By consent I make orders in accordance with the short minutes of order, which I have executed and left with the papers.
Any other orders sought?
BAIR: No, your Honour.
HIS HONOUR: The Court will adjourn.
[2]
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: 18 March 2021