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District Court 2 October 2020

R v Despotovski

[2020] NSWDC 873

Fraud & dishonestyPublic order & justice offences
CRIME LATE GUILTY PLEA SPECIAL CIRCUMSTANCES

Citation: R v Despotovski [2020] NSWDC 873
Court: District Court of New South Wales
Date: 2 October 2020
Judge(s): Haesler SC DCJ

Background

The offender had previously been sentenced, in April 2020, to five years and seven months imprisonment for supplying a large commercial quantity of cannabis leaf, with a non-parole period commencing 20 December 2019. He was arrested at around the same time on a separate but related charge: making a collusive agreement with a serving member of the NSW Police Force, an offence carrying a maximum penalty of seven years imprisonment under s 201B of the Police Act 1990 (NSW).

The agreed facts established that the offender, a drug dealer, met a Senior Constable at a Wollongong hotel in December. He asked the officer to search the NSW Police records system for a named individual who allegedly owed him a substantial sum of money. The offender was concerned that this person might be an undercover operative. The following day the two men met again, and the officer showed the offender screenshots taken from the police information system. The offender paid the officer $300 in cash.

Neither man was aware that a lawful listening device was recording the offender's phone at the time. The officer was subsequently convicted after trial and separately sentenced (R v Hoyn [2020] NSWDC 834). The offender's guilty plea to the collusive agreement charge was entered just before the date fixed for trial.

  • What sentence was appropriate for the offence of making a collusive agreement with a police officer, having regard to the objective seriousness of the conduct?
  • What guilty plea discount applied where the plea was entered late, shortly before trial?
  • How should the totality principle operate when sentencing an offender who is already serving a substantial term of imprisonment for related conduct?
  • Whether special circumstances existed to justify an adjusted ratio between the non-parole period and the total sentence.

Decision

Haesler SC DCJ assessed the offence as objectively serious. Offences involving collusive agreements with police officers threaten the integrity of the administration of justice, potentially expose police sources, and can jeopardise active investigations. Both retributive and general deterrent considerations required a custodial sentence, and given the offender was already serving a lengthy term, no other sentencing option was appropriate.

The late guilty plea attracted only a 5% discount, reflecting that it came shortly before trial rather than at an early opportunity. The judge noted that the plea did save some court time and represented an acceptance of responsibility, but declined to draw any firm conclusion about whether it indicated genuine remorse. Without the plea, a sentence of approximately two years would have been imposed. After applying the 5% reduction and allowing for rounding, the sentence was set at one year and ten months.

The judge applied the totality principle from Postiglione v The Queen (1997) 189 CLR 295, which requires that the total period of custody across all offences fairly represents the overall criminality. This required partial accumulation on the existing sentence rather than full concurrency, so that the new offence received some independent punishment. However, the judge acknowledged that achieving this without producing a disproportionate overall sentence meant the existing non-parole period would need to be curtailed, a consequence that in turn justified a significant finding of special circumstances for the current matter.

On the offender's personal circumstances, the judge noted his mid-forties age, a supportive family, diagnosed mental health conditions (including PTSD, chronic Major Depressive Disorder, and Panic Disorder with Agoraphobia), constructive conduct in custody, and the added hardship of serving time during the COVID-19 pandemic. These factors informed the structuring of the sentence but did not displace the need for meaningful punishment.

Orders Made

  • The offender was convicted in accordance with his guilty plea.
  • A non-parole period of 12 months was imposed, commencing 19 November 2021, with release to parole on 18 November 2022 (an extension of the earlier sentence by five months).
  • A parole period of ten months was imposed, to run concurrently with the existing parole period.

Key Takeaways

  • The District Court confirmed that offences involving collusive agreements with police officers are treated as seriously undermining the integrity of the justice system, warranting retributive and deterrent custodial sentences.
  • A late guilty plea entered immediately before the trial date attracted only a 5% discount under the statutory provisions, reflecting the limited utilitarian value of the plea at that stage.
  • Under the totality principle (Postiglione v The Queen), a sentencing court must consider the cumulative effect of all sentences when an offender is already serving a term, even where sentencing occurs on separate occasions; some independent punishment for each distinct offence remains necessary.
  • Where achieving appropriate accumulation for a fresh offence requires reducing an existing non-parole period, that consequence can itself support a significant finding of special circumstances, justifying a longer ratio of parole to total sentence than the standard formula would produce.
  • Diagnosed psychiatric conditions, constructive conduct in custody, and the additional hardship of imprisonment during the COVID-19 pandemic were treated as relevant to the structuring of the sentence, though they did not displace the primacy of punishment and deterrence for this class of offence.

Legislation and Cases Referenced

Legislation
- Police Act 1990 (NSW), s 201B (offence of making a collusive agreement with a police officer; maximum penalty seven years imprisonment)

Cases
- R v Despotovski [2020] NSWDC 110 (earlier sentencing of the same offender for large commercial cannabis supply)
- R v Hoyn [2020] NSWDC 834 (sentencing of the police officer involved in the agreement)
- Postiglione v The Queen (1997) 189 CLR 295 (totality principle in sentencing)