R v Stefanovic

Agreed Facts

1. The agreed facts for the purpose of the sentence signed by the solicitor advocate for the DPP and the offender are as follows. At approximately 9:50pm on Friday 11 August 2017, plainclothes police were patrolling along Crown Street in Surry Hills. They observed a man walking on the street texting on his mobile phone and looking around the street. Police observed him turn onto Arthur Street and stop as though waiting to meet someone.
2. A short time later Aleksandar Stefanovic walked up and met the male. Police observed the two men shake hands and appear to exchange items before walking away from each other. Police believed that a drug sale had taken place. The male was stopped by police and searched. He had on his person one bag of white powder which he admitted buying from Stefanovic for $300.
3. Stefanovic was observed entering the front passenger seat of a silver Toyota Yaris parked in the driveway. Peter Mulligan was occupying the driver's seat. Mr Mulligan is the registered owner of this vehicle. Both Stefanovic and Mulligan were wearing business attire.
4. Police approached and cautioned Stefanovic and Mulligan. Mulligan stated 'I just reversed into the driveway to do a U-turn'. Stefanovic declined to answer any questions. The vehicle was searched and police observed Stefanovic holding a ball of paper towel in his left hand. Inside was a clear resealable plastic bag containing 10 black capsules and 11 clear resealable plastic bags of white powder. These were later analysed as MDMA and cocaine. Police located $300 in $50 notes and $95 in loose change in Stefanovic's pocket.
5. Police removed the control panel on the front passenger door and located a black pencil case. It contained: 1. A sealed envelope containing $2250 in cash; 2. One clear resealable plastic bag of white powder analysed to be cocaine; 3. Two 'sandwich bags': 1. One containing 30 clear resealable plastic bags of white powder analysed to be cocaine; and 2. One containing five clear resealable plastic bags which in total contained 49 black capsules. These capsules were analysed to be MDMA; 1. A spare mobile phone battery; and 2. Elastic bands.
6. Police also located one clear resealable plastic bag of white powder in plain sight behind the centre console on the front passenger footwell. This was analysed to be cocaine.
7. Police removed a small panel on the centre console and located two Samsung mobile phones and an amount of cash in $50 denominations, tied with an elastic band. It amounted to $6000.
8. Mulligan and Stefanovic were arrested and taken to Surry Hills police station. They each declined an offer to participate in electronically recorded interviews.
9. In total police seized: 1. $8645 in cash; 2. 43 bags of cocaine weighing a total of 29.11 g; and 3. 59 capsules of MDMA weighing a total of 6 g.
10. Stefanovic's DNA profile was recovered from one of these resealable plastic bags, the zipper on the pencil case and the front of the envelope.

The Evidence

1. The Crown tendered a bundle of documents marked Exhibit 1 comprising the following: 1. The Indictment; 2. The Form 1 and Court Attendance Notices (Sequences 2 and 4); 3. The s166 certificate and Court Attendance Notices (Sequences 5 and 6); 4. Agreed Facts for sentence; 5. Mr Stefanovic's criminal history, which includes an offence dismissed pursuant to section 10 of the Crimes (Sentencing Procedure) Act and one conviction which occurred 15 years ago, the latter of which Mr Stefanovic's counsel, Mr Dhanji SC, informed me (and it was not disputed by the Crown) that is a spent conviction pursuant to the Criminal Records Act 1991; and 6. Mr Stefanovic's (lack of a) custodial history other than relating to this offence.
2. Mr Dhanji SC tendered a bundle of documents marked Exhibit 2 comprising 12 tabbed documents including a number of references. All the referees were informed of the offence Mr Mulligan has been charged with and the facts of the case.
3. At Tab 1 there is a clinical psychologist report of Simon Milton dated 15 March 2019. It notes that at the time of that Mr Milton first saw him in September 2017, Mr Stefanovic met the diagnosis for Cocaine Use Disorder, Severe, in early remission, and that he has now undergone treatment for his long history of drug and alcohol use. It notes that he was brought up in an underprivileged area in Sydney where he was continually exposed to drug use. This report is a clinical rather than a forensic assessment, and notes that in Mr Milton's clinical opinion Mr Stefanovic has 'undertaken all possible options to rehabilitate himself and ensure that he does not return to drug use'. He believes that Mr Stefanovic has responded extremely well to intervention, and that his prognosis is excellent.
4. At Tab 2 there is an apology letter from the offender dated 28 April 2019. It notes that he is sorry and embarrassed about the offences, and that he has gained a lot of knowledge about himself, his drug use and how drugs damage individuals, families and communities. He says that he takes full responsibility for his actions. He notes that after completing his Certificate IV in Alcohol & Other Drugs, he now wants to dedicate his life to social work dealing with drugs and alcohol abuse.
5. At Tab 3 there is a reference from Jim Troy dated 24 July 2018. Mr Troy is the business and administration manager at the Kirketon Road Centre where Mr Stefanovic was doing a student placement from TAFE as part of studying for his Certificate IV in Alcohol & Other Drugs. Mr Troy notes that Mr Stefanovic was an excellent employee during his three unpaid weeks with the Centre, and notes that he would have been appointed to a paid position at the Centre but for these charges. He will have to wait until his court matter is finalised before he might be appointed. Mr Troy says 'I would recommend Mr Stefanovic to any employer, based on his performance here'. Mr Dhanji SC tells me, and I accept it, that this letter was written almost a year ago, and there would be guarantee that Mr Stefanovic would be able to secure this employment.
6. At Tab 4 there is a reference from Halina Golebiowska dated 12 April 2018. Ms Golebiowska is Mr Stefanovic's mother. She states that she had very serious medical conditions before Mr Stefanovic's birth, and as a result she had to bring him up as a disability pensioner in a housing commission unit in Redfern with some limited financial assistance from Mr Stefanovic's father. She notes that he is not violent and he has always enjoyed helping people. She says that he struggled with drug and alcohol abuse in his teenage years and early 20s, but always supported himself. She notes that since his arrest, her son has made a 'genuine attempt to rehabilitate himself by attending regular counselling, [and] became a member of Alcoholics Anonymous (AA)' and has completed a Certificate IV to learn more about, and help others with, addiction. She says the Mr Stefanovic is a good son who helps her out with chores, medical appointments and anything else she needs assistance with.
7. At Tab 5 there is sheet dated 12 April 2018 that summarises the considerable medical issues that Mr Stefanovic's mother, Halina Golebiowska, has suffered in the past and which sets out her current and considerable medical problems.
8. At Tab 6 there is a reference from Audrey Chung dated 22 April 2019. Ms Chung was a regular customer at Mr Stefanovic's former convenience store and considers Mr Stefanovic to be a loyal friend. She said that she believes he is sincere in his regret and she is convinced that he 'will do everything in his power to live an honest and meaningful life and give back to the community'.
9. At Tab 7 there is a reference from Tim O'Sullivan dated 25 April 2019. Mr O'Sullivan is a fellow attendee of AA meetings who has known the offender for over four months. He notes that he has found Mr Stefanovic to be 'sincere, motivated, open-minded and willing in his efforts to implement AA in his life'. He believes Mr Stefanovic to be a 'naturally gentle, considerate, well-intentioned young man in regard to the world around him', and has high hopes for his rehabilitation.
10. At Tab 8 there is a reference from Nemer Jabbour dated 24 March 2019. Mr Jabbour is the director of De Novo Foods where Mr Stefanovic has been employed as a casual delivery driver since July 2018. Mr Jabbour states that Mr Stefanovic has been an honest and reliable employee who is always friendly and courteous. He states that although Mr Stefanovic is a model employee, he has advised Mr Stefanovic that he cannot offer him a permanent/full-time position until this matter is finalised. He says that he hopes and expects to be able to continue to support Mr Stefanovic.
11. At Tab 9 there is a reference from Melissa Kozlina dated 15 March 2019. Ms Kozlina is Mr Stefanovic's aunt. She writes about the offender's less than ideal upbringing in Redfern housing commission accommodation, and notes that even so, he managed to be school captain in year six at the Crown Street Public Primary School. She says that he is a very 'family oriented' person who visits his grandmother every week, helps out his elderly sick mother and is always willing to help out with Serbian Orthodox Church community events. He also regularly helps out his aunt and uncle with various chores, as they are both pensioners.
12. At Tab 10 there is a Certificate, Letter and Transcript for a Certificate IV in Alcohol and Other Drugs which was issued on 12 October 2018.
13. At Tab 11 are one month, two month and three month sobriety medallions from Alcoholics Anonymous.
14. At Tab 12 there are medical records and urinalysis results. These results show that from 23 August 2017 to 27 February 2019 Mr Stefanovic was clear of any drugs, except on 13 September 2018 when he tested positive for benzodiazepines, but which apparently related to the sleeping aid Tamazapam and which is of no consequence with respect to this sentence. For all intents and purposes, I find that Mr Stefanovic has been drug free since his arrest.
15. I note that I have recently been provided with a Sentencing Assessment Report dated 30 May 2019 under the hand of Sam Willmott, Community Corrections Officer. That document notes that the offender resides independently in stable accommodation, that he has a supportive relationship with his mother for whom he cares regularly, that he is currently employed on a casual basis as a delivery driver, that his offending was caused by his problematic cocaine and benzodiazepine use and financial deficit incurred by his drug use, that he has remained abstinent from all illicit drugs since the offences, that he is no longer under financial pressure, and that he has insight into how his offending affected himself and the community. He was assessed at a medium/low risk of reoffending and deemed suitable to undertake community service work. Community Corrections can provide up to 20 hours of work per month.

Crown Submissions

1. Ms Black, who appeared on behalf of the Crown, submitted that the threshold of section 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed and that no penalty other than imprisonment would be appropriate. She did not argue against an Intensive Correction Order (ICO) being imposed. Mr Dhanji SC agreed that the threshold had been crossed, and he submitted that it would be appropriate for the court to impose an ICO.
2. The point of difference between the Crown and the offender arose with respect to the conditions that ought to be imposed, with Ms Black submitted that there ought to be a community service component. I will return to these submissions shortly.
3. I note that I greatly assisted by the concise and thoughtful submissions of both Ms Black and Mr Dhanji SC.

Defence Submissions

1. On behalf of Mr Stefanovic, Mr Dhanji SC also provided helpful written submissions. With respect to objective seriousness, he noted that whilst the offender was supplying drugs for profit, the subjective material suggested that he was not motivated by greed but rather was supporting his own drug use. The first offence involves cocaine in an amount less than the small quantity. He submitted that while the quantity in count 2 is not insignificant, it is at the lower end of the range applicable to indictable quantities and that there is no evidence as to the purity of the drug. He noted in effect, the role of the offender was as a supplier of drugs at the street level and at the bottom rung of the supply hierarchy. This, he submitted, had the effect of putting the offences at the lower end of objective seriousness.
2. He also submitted that the offender pleaded guilty to each of the offences, and suggested that a discount of 10% would be appropriate in keeping with R v Thomson & Houlton (2000) 49 NSWLR 383. The Crown did not cavil with such a discount.
3. Mr Dhanji SC submitted that the offender had an extremely powerful subjective case. He noted that Mr Stefanovic has a very limited criminal history involving one conviction 15 years ago (which is thus a spent conviction pursuant to the Criminal Records Act (1991) and an offence which was dismissed pursuant to section 10 of the Crimes (Sentencing Procedure) Act.
4. Most significantly, Mr Dhanji SC says that the offender has an extremely positive case with respect to his rehabilitation. Mr Dhanji SC submitted that Mr Stefanovic's background was of some disadvantage, which is relevant to culpability, which I accept. As pointed out by Mr Dhanji SC, the offender's background is inextricably connected with his drug use. Furthermore, Mr Dhanji SC says, and it is clearly the case, that from the time of his arrest and following release from custody, the offender has remained abstinent, and has been assisted by AA and counselling. He has completed a Certificate IV in Alcohol and Other Drugs and has completed a student placement at the Kirketon Road Centre where he had hoped to obtain employment. I am satisfied that the offender presents a case of demonstrated rehabilitation.
5. I am also satisfied, as Mr Dhanji SC suggests, that the offender is remorseful. In this case, in my opinion it is proved by the deeds of the offender since his arrest, although I note that it is also supported by his words in the letter to the court and to others who have provided references.

Objective Seriousness

1. I have considered the authorities and the relevant principles guiding the assessment of the objective seriousness of offences of this kind. I am mindful that the assessment of objective gravity must be made by reference to all of the facts and circumstances of the case. [1]
2. While drug supply of any kind is undoubtedly serious, I am satisfied that the quantity supplied for count one on the indictment is at the very low end of the range of objective seriousness. The same cannot be said for count 2, but I find that it is at the low end of the range of objective seriousness for reasons already stated. I note that there is no suggestion that the offender was supplying the drugs for living a lavish lifestyle as a result of drug proceeds. This a very serious offence, however, given the role of the offender, the street level nature of his dealing, the relatively unsophisticated manner in which he was selling the drugs, together with the fact that his motive to supply was to fund his own drug use and pay off a debt that he had accrued as a result of increasing drug use, I find that the offending generally was at the low end of the range for offences of this nature.

Form 1 and s166 Matters

1. As I indicated earlier, I have been asked to take a series of further offences into account on a Form 1 basis when sentencing. I do so and I have carefully considered s33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.
2. In addition, I have been asked to deal with four related offences which are listed on the s166 certificate. I have taken these offences into account upon considering the total sentence to be imposed in accordance with s167(1)(b) of the Criminal Procedure Act 1986 (NSW).

Sentencing Approach

1. The purposes of sentencing are expressed in s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As often occurs, the facts and circumstances of the present offences and this offender highlight how the various purposes of sentencing pull in competing directions - especially given that the offender's own drug addiction played a significant role in his offending behaviour.
2. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: 'The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) [(1988) 164 CLR 465, at 476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen(No 2) [at 476] in applying them'.
3. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
4. Matters adverse to an offender must be proved beyond reasonable doubt whilst those favourable to an offender need only be proved on the balance of probabilities. There are no applicable aggravating factors within the meaning of s21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that must be taken into account in these circumstances. I note that financial gain is a relevant factor in this case, however given that such is an inherent characteristic of the offences in question, it cannot operate to aggravate the sentence. To do so would be double counting. There are, however, a number of mitigating matters that come into play as referred to in s21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW):

Plea of Guilty - s21A(3)(k)

1. The offender pleaded guilty on the first day of trial in the District Court and accordingly I have discounted the sentence I would otherwise have imposed by 10% to reflect the utilitarian value of the plea of guilty. I will indicate the quantitative effect of that discount on the sentence later in this judgment.

Rehabilitation - s21A(3)(h)

1. There is a very strong case in favour of the offender's prospects of rehabilitation. I do not repeat what I have already recounted above. Suffice it to say, the offender has made significant and commendable strides towards his rehabilitation which are very much to his credit. I am satisfied that he is genuinely determined to turn his life around.

Remorse - s21A(3)(i)

1. Mr Stefanovic has demonstrated a good deal of insight into his offending behaviour, and the impact that the supply of drugs has on the community. As I have said, this is demonstrated by his actions as well as his words.
2. I am satisfied that the offender appreciates the seriousness of his offending and that he is genuinely remorseful for his offending behaviour.

Totality

1. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.
2. This in turn requires consideration to be given to whether the sentences to be imposed on each offence should be concurrent or cumulative.
3. The two principal offences, being those on count one and two of the indictment, both involve the supply of prohibited drugs, albeit different quantities. While I am well aware that a sentence must not be concurrent 'simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct', [2] I am satisfied that the offender can be sentenced concurrently without offending the principle of totality.

Pre-sentence custody

1. The offender has spent a total of four days in custody for this offending. In accordance with s24(a) and s47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I have taken this into account.
2. While it would ordinarily be the case that a sentence is backdated to take into account pre-sentence custody, doing so is inappropriate in this case due to the fact that Mr Stefanovic has not served a continuous period of time in custody up until the date of sentence. [3] Therefore, I have reduced the sentence imposed by four days.

Sentence

1. I have taken into account the various purposes of sentencing under s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that I referred to earlier in this sentence.
2. Having had regard to s5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and having considered all possible alternatives, I am of the view that no penalty other than imprisonment is appropriate.
3. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.
4. In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalties, which are imprisonment for 15 years for each offence, and the fact that there are no standard non-parole period for either offence.
5. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 1 year and 6 months, or 18 months. This is the effective sentence after applying a 10% discount for the offender's early guilty plea. Had this discount not been applicable, the aggregate sentence would have been imprisonment for 1 year and 8 months.
6. I also find, as submitted by Ms Black that a condition requiring community service is appropriate in these circumstances and would be reflective of the need for punishment of the offender and general deterrence.
7. As required by s53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the indicative sentences I would have imposed are as follows: 1. For the offence comprising count 1 on the indictment, namely supply prohibited drug contrary to s25(1) of the DMTA (.09 grams of cocaine), I would have imposed an indicative sentence of imprisonment for 9 months. Taking into account the offender's plea of guilty, the effective indicative sentence for this offence would have been reduced to 8.1 months. 2. For the offence comprising count 1 on the indictment, namely supply prohibited drug contrary to s25(1) of the DMTA (28.21 grams of cocaine), I would have imposed a sentence of imprisonment for 18 months. Taking into account the offender's plea of guilty, the effective indicative sentence for this offence would have been reduced to 16.2 months.
8. The final matter I must consider is whether it is appropriate to impose an alternative to full-time imprisonment - namely, in these circumstances, an intensive corrections order. On this question, I have considered the recent authority of Parente v R [2017] NSWCCA 284, which held that the 'principle' established in R v Peter Michael Clark (Court of Criminal Appeal (NSW), 7 July 1983, Unreported) - that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate - should no longer be applied in sentencing for drug supply cases [at 106]. I also note that the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated: 'We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence'.
9. Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). Having regard to the subjective case of the offender, I am satisfied that the offender's risk of reoffending, and therefore the safety of the community generally, is more likely to be addressed within the community rather than in gaol (s66(2) of the Crimes (Sentencing Procedure) Act 1999 NSW)). In arriving at these conclusions, I have also considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

Orders

1. The offender is convicted of the following offences: 1. Supply of 0.9 g of cocaine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. 2. Supply of 28.21 g of cocaine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985.
2. Taking into account all the matters on the Form 1, you are sentenced to a term of imprisonment of 18 months.
3. Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed is to be served by way of an Intensive Correction Order.
4. The sentence will commence today, 27 June 2019 and will expire on 27 December 2020.
5. The offender must report to the Burwood Community Corrections Office as soon as practicable, but no later than 7 days from 27 June 2019. This means that the offender must report to the Burwood Community Corrections Office by 4 July 2019.
6. The standard conditions of the order apply, namely: 1. The offender must not commit any offence; and 2. The offender must submit to supervision by a Community Corrections Officer.
7. The following additional conditions apply: 1. A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Mr Stefanovic is currently receiving with Mr Milton complies with this condition. If Mr Stefanovic is unable to continue to attend upon Mr Milton, he is to attend such other program as he may be reasonably required to attend by Community Services. 2. An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.
8. I order the offender to undertake community service work of 150 hours.
9. I dismiss the charges contained in the s166 Certificate.
10. I make a forfeiture order with respect to the $8645 that was seized on the offender's arrest on 11 August 2018.
11. All drugs that were taken by police from the offender on 11 August 2018 are to be destroyed.
12. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or may include revocation of this order.
13. If the order is revoked, the offender may be required to serve all or some of the period of his sentence in full-time custody.
14. The offender is now directed to attend the court registry where a copy of this order will be explained and given to him.

Endnotes

1. R v Huynh [2005] NSWCCA 220 at [26]-[29].
2. R v Jarrold [2010] NSWCCA 69 at [56].
3. R v English [2000] NSWCCA 245 at [23]; R v Pincham [2000] NSWCCA 478 at [12]. 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 July 2019