Citation: R v Petkos (No.2) [2019] NSWDC 330
Court: District Court of New South Wales
Date: 17 June 2019
Judge: Colefax SC DCJ
Background
The offender, a man aged approximately 49 at the time of the offending, imported two separate consignments of gamma-butyrolactone (GBL), a prohibited drug, from China into Australia in May 2018. The first consignment, intercepted by the Australian Border Force, weighed 584.3 grams with a purity of 98.7 per cent. A second consignment arrived four days later containing 5,624 grams of GBL at 98.5 per cent purity, along with five litres of hypo-phosphorous acid, a precursor chemical used in manufacturing methylamphetamine.
NSW Police had obtained a surveillance warrant for the offender's mobile phone prior to the interceptions, having identified drug supply communications referencing GBL. A subsequent search of the offender's granny flat uncovered a Taser disguised as a torch.
The offender pleaded guilty at the first available opportunity to two principal offences under the Drug (Misuse and Trafficking) Act 1985 (NSW). He also asked the court to take into account, on a Form 1, the possession of a prohibited weapon and possession of a precursor chemical.
Legal Issues
- What was the appropriate aggregate sentence for supply of a prohibited drug in a quantity exceeding the large commercial quantity, and for attempting to supply a prohibited drug in a quantity exceeding the indictable quantity?
- What weight should be given to the offender's guilty plea in circumstances where an earlier exculpatory version of events had been advanced and then withdrawn?
- Whether the offender had demonstrated genuine remorse, and what bearing that had on sentencing.
- Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period.
Decision
His Honour found the first principal offence (the 5,624-gram consignment) to be equidistant between the middle and bottom of the range for its kind, and the second principal offence (the 584.3-gram consignment) to be slightly below mid-range. Although the offender stood to make only a modest profit, he was the principal in both importations, not a street dealer or intermediary. The background facts, including two earlier intercepted shipments for which he was not charged, indicated the offending was not isolated.
The offender's guilty plea attracted a 25 per cent discount. However, His Honour declined to treat the plea as evidence of genuine remorse. The offender had previously maintained an exculpatory account to the treating psychiatrist and the author of the sentencing assessment report, claiming he had unknowingly imported a cleaning product. That account was inconsistent with expressions of remorse tendered to the court. The offender's absence from the witness box further undermined those expressions.
His Honour found the offender's prospects of rehabilitation to be reasonable, having regard to his age, work history, and limited criminal antecedents. Specific deterrence was accordingly reduced in weight. General deterrence, however, was fully engaged given the nature of the offending. The Form 1 matters, particularly the precursor chemical, produced a meaningful increase in the indicative sentence for the first principal offence.
Special circumstances were found, allowing modest variation of the ratio between the aggregate head sentence and the non-parole period. This finding was grounded in the offender's first experience of custody and his ongoing depressive condition, both of which made imprisonment harder for him than for others.
Orders Made
- The offender was convicted of both principal offences.
- An aggregate sentence of eight years imprisonment was imposed.
- Non-parole period of five years, commencing 22 May 2018 and expiring 21 May 2023.
- Balance of term of three years, commencing 22 May 2023 and expiring 21 May 2026.
- Drug destruction order made.
Key Takeaways
- An early guilty plea does not automatically carry weight as evidence of remorse: the District Court found the plea reflected the strength of the Crown case rather than genuine contrition, particularly where the offender had maintained an exculpatory account to experts before withdrawing it.
- Where an offender declines to give sworn evidence, the court may approach expressions of remorse contained in letters or expert reports with considerable scepticism.
- A finding of special circumstances, permitting variation of the non-parole period ratio, can be supported by a combination of first-time custody status and an ongoing psychiatric condition that makes imprisonment objectively harder to endure.
- Form 1 matters can produce meaningful increases to a principal sentence: the presence of a methylamphetamine precursor chemical produced a significant uplift, while the prohibited weapon produced a lesser but still tangible increase.
- General deterrence carries full weight in commercial-scale drug importation cases, even where the offender's personal profit motive was modest and prospects of rehabilitation were otherwise reasonable.
Legislation and Cases Referenced
Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1) and 25(2)
Cases:
- R v Petkos [2019] NSWDC 175 (earlier sentence hearing concerning the withdrawn version of agreed facts)