Citation: R v Zolfonoon [2015] NSWDC 296
Court: District Court of New South Wales
Date: 11 December 2015
Judge: Whitford SC DCJ
Background
The offender operated a martial arts academy in Rozelle and was the subject of a NSW Police investigation, Strike Force Taipan, commencing in November 2011. Police deployed two registered informers and an undercover police officer (UCO) to engage him in drug transactions. Over the course of the investigation, which extended into 2013, the offender facilitated and participated in the supply of significant quantities of heroin and methylamphetamine.
The offender acted as an intermediary in a chain involving at least two co-offenders. He sourced drugs from those co-offenders and on-supplied them to the UCO in exchange for controlled police funds. The transactions included a kilogram of heroin supplied at his academy in January 2012 for $150,000, and subsequent supplies of heroin and methylamphetamine across multiple occasions.
The offender pleaded guilty on 17 July 2014 to two counts of supplying a prohibited drug in a large commercial quantity under the Drug Misuse and Trafficking Act 1985: the first count relating to slightly over 3.5 kilograms of heroin, the second to just over 9 kilograms of methylamphetamine. He also asked the court to take into account three additional possession offences on a Form 1, which the court agreed to do when sentencing on the second count.
Legal Issues
- What was the appropriate sentence for each of two counts of supplying a prohibited drug in a large commercial quantity, having regard to the totality of the offending?
- What weight should be given to the role of police informers and the UCO in the offending, and whether this constituted impermissible entrapment affecting culpability?
- Whether the offender's personal circumstances, including rehabilitation, family ties, and cultural background, warranted mitigation of sentence.
- Whether injuries sustained during arrest (dog bites) amounted to extra-curial punishment that should be taken into account in the offender's favour.
- What discount applied for the guilty pleas, and to what extent should the two sentences be accumulated or served concurrently?
Decision
His Honour accepted that the involvement of police informers and the UCO was a relevant consideration but did not treat it as negating the offender's culpability. The court found that although the investigation created the opportunity for the transactions to occur, the offender had pre-existing connections to drug suppliers, willingly participated, and demonstrated an ongoing intention and capacity to supply large quantities of drugs. The offending spanned two distinct periods and involved the offender acting as a knowing intermediary in a sophisticated supply chain.
On the question of personal circumstances, the court acknowledged the offender's rehabilitation efforts, family ties, cultural background, and character references. His Honour accepted that these factors carried genuine mitigating weight. However, the court rejected the submission that the dog bites suffered during arrest constituted extra-curial punishment, finding the injuries were not sufficiently serious and were likely caused by the offender's own conduct in attempting to evade apprehension.
The court accepted the Crown's submission that some accumulation between the two sentences was warranted to reflect that the offending across the two counts was discrete and engaged in willingly over two separate periods. At the same time, it accepted that a significant degree of concurrency was appropriate. The court imposed an aggregate sentence rather than individual sentences for each count.
A 25% discount was applied to each offence to reflect the utilitarian value of the guilty pleas.
Orders Made
- The offender was convicted of supply a large commercial quantity of heroin and supply a large commercial quantity of methylamphetamine.
- An aggregate sentence was imposed comprising a non-parole period of 4 years commencing 29 August 2013 and expiring 28 August 2017, and a balance of term of 6 years and 9 months expiring 28 May 2024.
- Total effective sentence: 10 years and 9 months, with a total non-parole period of 4 years.
- Had individual sentences been imposed (after the 25% plea discount):
- Heroin count: 6 years and 9 months imprisonment, non-parole period of 2 years and 5 months.
- Methylamphetamine count: 9 years and 9 months imprisonment, non-parole period of 3 years and 6 months.
Key Takeaways
- The use of police informers and an undercover officer to facilitate drug transactions did not negate an offender's culpability where the offender had independent access to suppliers and willingly engaged in the offending over an extended period.
- Where an offender acts as an intermediary in a drug supply chain rather than as the principal controller, the court treated that role as relevant to the assessment of objective seriousness, though it did not eliminate it given the scale and deliberateness of the conduct.
- Injuries sustained during arrest will not automatically constitute extra-curial punishment warranting sentencing concessions; the District Court declined to apply that principle where the injuries were not sufficiently serious and appeared to result from the offender's own conduct in resisting arrest.
- A 25% sentencing discount applied for guilty pleas reflecting their utilitarian value, consistent with established practice under New South Wales law.
- Where two counts of large commercial supply involve discrete periods of offending, some accumulation of sentences is appropriate to reflect the separate criminality, even where significant concurrency is otherwise warranted having regard to totality.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases:
No cases were cited in the provided text of the judgment.