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District Court 2 November 2018

R v Zotos

[2018] NSWDC 478

Drugs
CRIMINAL SENTENCE SUPPLY PROHIBITED DRUG, COCAINE FORM 1 MATTERS SUBJECTIVE MATTERS

Citation: R v Zotos [2018] NSWDC 478
Court: District Court of New South Wales
Date: 2 November 2018
Judge(s): King SC DCJ

Background

The offender was a delivery driver for an organised cocaine supply syndicate operating in Sydney. The syndicate ran a mobile delivery service under fictitious names, maintaining a customer base of 700 to 800 people and selling cocaine in 0.7 gram bags for $300 each. The offender used the name "Sam" and answered calls from customers to arrange and complete deliveries.

Police commenced a covert investigation in March 2016, using a controlled operation authority and lawful telecommunications interception. The investigation identified the offender as actively supplying cocaine on multiple occasions between July and October 2016, including during a controlled purchase. He was arrested on 27 October 2016.

The offender appeared for sentencing on one count of supply of a prohibited drug (50 grams of cocaine), carrying a maximum penalty of 15 years' imprisonment and a fine of $220,000. He also asked the court to take into account three Form 1 matters: possession of two anabolic or androgenic steroidal agents (testosterone enanthate and oxandrolone), and dealing with property that were the proceeds of crime ($6,680).

  • What sentence was appropriate for the principal offence of supplying 50 grams of cocaine under s 25(1) of the Drug Misuse and Trafficking Act 1985?
  • What weight should be given to the Form 1 matters in the overall sentencing exercise?
  • What discount applied for the early guilty plea, and how should subjective factors (including the offender's personal circumstances) bear on the sentence?
  • Whether any question arose regarding the treatment of the Form 1 offences, including in light of a co-offender's pending sentencing proceedings.

Decision

The District Court sentenced the offender following his plea of guilty at the earliest opportunity, which entitled him to a 25 per cent discount for the utilitarian value of that plea, consistent with the principles stated in R v Thomson; R v Houlton. The court noted the offender had spent approximately six days in pre-sentence custody.

The principal offence involved organised, systematic cocaine supply over several months in a sophisticated operation. The offender's role was as a delivery driver within the syndicate rather than as an organiser, though he was an active and integral participant who communicated directly with a large customer base and made numerous individual supply transactions.

The Form 1 matters included possession of anabolic steroids and dealing with proceeds of crime, and the court took those into account in the overall sentence. The court also considered the subjective circumstances of the offender in arriving at the appropriate penalty.

A procedural issue was raised by defence counsel concerning the treatment of the Form 1 offences, but the court declined to take any particular course in response, finding the legislation clear. The court noted that a co-offender faced sentencing in separate proceedings before the District Court, and directed that the reasons be provided promptly given the overlap.

Orders Made

• Sequence 2, being possess cocaine, is withdrawn and dismissed
• An order for the disposal of drugs (steroids) is to be made
• Reasons to be provided with speed to the co-offender's legal representatives

Key Takeaways

  • A guilty plea entered at the earliest opportunity attracted a 25 per cent discount for utilitarian value alone, consistent with the Thomson and Houlton principles, even in the context of serious drug supply offences.
  • Participation as a delivery driver within an organised cocaine supply syndicate, rather than as an organiser, remains a serious role for sentencing purposes where the offender was directly involved in repeated transactions across a large customer base.
  • Form 1 matters, including possession of anabolic steroids and dealing with proceeds of crime, were taken into account in the overall sentencing exercise for the principal drug supply offence.
  • Under s 25(1) of the Drug Misuse and Trafficking Act 1985, supply of 50 grams of cocaine carries a maximum of 15 years' imprisonment and a $220,000 fine, with no standard non-parole period applicable.
  • Where a co-offender's sentencing hearing was imminent in separate proceedings, the District Court directed that its reasons be made available promptly to assist the other sentencing judge, noting potential factual and legal overlap.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146