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10
District Court 15 April 2020

R v Despotovski

[2020] NSWDC 110

Drugs
SENTENCING ROLLED UP QUANTITY MULTIPLE TRANSACTIONS RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA FORM 1

Citation: R v Despotovski [2020] NSWDC 110
Court: District Court of New South Wales
Date: 15 April 2020
Judge: Haesler SC DCJ

Background

A police strike force established in 2018 investigated cannabis supply in the Wollongong area. Over a period of approximately five months, the offender purchased more than 129 kg of cannabis leaf from a Sydney-based syndicate and distributed it to associates in the Wollongong region across more than 30 separate transactions. He operated from his home, where his wife and two-year-old child were also present.

The offender was arrested in December 2018 and remained in custody on bail refused from that date. The various transactions were rolled up into a single charge of supplying a large commercial quantity of cannabis leaf under s 25(2) of the Drug (Misuse and Trafficking) Act 1985, which carries a maximum penalty of 20 years imprisonment. The large commercial quantity threshold for cannabis leaf is 100 kg.

The offender pleaded guilty at an early stage. Four additional matters, including participation in a criminal group, exposing a child to drug crime, a separate cannabis supply matter, and a proceeds of crime offence, were taken into account on a Form 1.

  • Whether the rolled-up quantity across more than 30 transactions was an appropriate basis for a single charge
  • How to assess the offender's role and objective criminality within the broader drug supply operation
  • Whether the Form 1 matters should increase the sentence, given they had already been factored into the assessment of objective criminality
  • How parity principles applied given the sentences imposed on co-offenders
  • What weight to give mitigating factors, including an early guilty plea, mental illness, gambling addiction, and the COVID-19 pandemic
  • Whether special circumstances justified a longer than usual balance of term

Decision

His Honour confirmed that accumulating drug quantities from multiple transactions into a single rolled-up count was appropriate and accepted by the defence, consistent with established authority. However, the court emphasised the importance of avoiding double counting: because the number of transactions and the commercial nature of the offending were inherent in the rolled-up count itself, an overzealous application of the aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 risked penalising the offender twice for the same conduct.

On the offender's role, the court rejected the defence submission that the offender ranked below his main supplier, Tang, in any hierarchy of culpability. The court found that drug supply operations do not necessarily follow linear hierarchies, and that the offender's role in distributing cannabis throughout the Wollongong community was objectively more serious than that of his Sydney-based suppliers. He set up and managed his own intermediate-level operation, exercised quality control, used others to assist him, and stood to profit financially.

The Form 1 matters were not used to increase the sentence above what would otherwise have been imposed, because each had already been considered in assessing the objective criminality of the principal offence. To apply them again as aggravating factors would have amounted to impermissible double counting.

Parity was considered by reference to the earlier sentence imposed on Tang (4 years 6 months with a non-parole period of 2 years 8 months for supplying 67 kg) and the Local Court sentence imposed on the offender's wife. The court found that differences in criminal histories, roles, and the scale of offending justified a meaningfully higher sentence for the offender. His Honour noted the relevance of the offender's prior drug supply conviction, his mental health issues, gambling addiction, the impact of custody on a first-time prisoner, and the COVID-19 pandemic as contextual factors. A finding of special circumstances was made, resulting in a longer than usual balance of term. The pre-plea notional sentence was assessed at 7 years 6 months, which was then reduced to reflect the early guilty plea and the Form 1 consideration.

Orders Made

  • Total sentence of 5 years 7 months imprisonment
  • Non-parole period of 3 years 6 months, commencing 20 December 2018 and expiring 19 June 2022
  • Balance of term of 2 years 1 month, commencing 19 June 2022 and expiring 19 July 2024
  • Drug destruction order made
  • Forfeiture of $8,235.00 to the State pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989
  • Back-up charges withdrawn and dismissed

Key Takeaways

  • Rolling up drug quantities from multiple transactions into a single charge is well-established practice, but sentencing courts must take care not to double count the number of transactions and the commercial nature of supply as additional aggravating factors on top of the quantity already captured in the rolled-up count.
  • Where Form 1 matters have already been incorporated into the assessment of objective criminality for the principal offence, treating them as a further source of aggravation constitutes impermissible double counting; the District Court here declined to increase the sentence on that basis.
  • Parity in drug supply sentencing does not require equal sentences across co-offenders; differences in role, scale of offending, and criminal history can justify substantial disparity between participants in the same operation.
  • Drug supply operations need not be structured as strict linear hierarchies for the purposes of assessing relative culpability; a mid-level distributor who runs an independent operation may be found more culpable than a supplier who acts on commission for others.
  • His Honour acknowledged an emerging question about whether retribution and deterrence in drug supply sentencing demonstrably reduce future offending, while confirming that, for the present, those principles remain governing considerations in large commercial supply matters.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Brown v R [2020] VSC 60
- Cicciarello v R [2009] NSWCCA 272
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Hamzy v R (1994) 74 A Crim R 341
- Henry v The Queen (1999) 46 NSWLR 346
- Hili v The Queen (2010) 242 CLR 520
- Hoskins v R [2016] NSWCCA 157
- Jadron v R [2015] NSWCCA 217
- R v Ceissman [2004] NSWCCA 466
- R v Edwards (1996) 90 A Crim R 510
- R v Herring (1956) 73 WN (NSW) 203
- R v Tang [2020] NSWDC 96
- R v Verdins [2007] VSCA 102; 16 VR 269
- Siwek v R [2017] NSWCCA 178