Citation: R v Ognenovski [2020] NSWDC 884
Court: District Court of New South Wales
Date: 15 December 2020
Judge: Haesler SC DCJ
Background
The offender, a man born in 1993 and raised in Wollongong, was arrested in August 2019 following a complex police operation targeting two loosely connected drug supply networks. He was a participant in both groups: one directed by two brothers referred to as the Westmans, and another involving two associates named Walton and Owen. His co-offenders were separately before the court awaiting sentence.
The offender had developed a cocaine habit in his twenties and, according to his own account to a psychologist, became indebted to his supplier. He began supplying cocaine to discharge that debt and to fund both personal use and income. He was also involved in the supply of MDMA (methylenedioxymethamphetamine) through a separate set of arrangements with Walton and Owen.
The court was asked to sentence him on two charges of supplying a prohibited drug in a commercial quantity, each carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. A number of additional matters were placed before the court on a Form 1, including possession of cannabis, proceeds of crime, and participation in a criminal group.
Legal Issues
- How to structure an aggregate sentence across two separate commercial drug supply offences
- Whether the agreed rolled-up quantities of drug supply transactions were an appropriate basis for sentencing, and how to avoid double-counting when Form 1 matters overlap with the principal offences
- What weight to give mitigating factors, including an early guilty plea, prospects for rehabilitation, family support, personal drug use, and identified personality disorders
- How to assess the offender's role and objective seriousness within the context of a loosely organised criminal group
Decision
Haesler SC DCJ accepted that rolling up the quantities from multiple individual drug supply transactions into a single charge was an appropriate and established approach, citing Hamzy v R and Jadron v R. His Honour was careful to avoid double-counting: aggravating factors relevant to the principal offences could not be counted again in respect of the Form 1 matters. Consistent with the High Court's guidance in Markarian v The Queen, the task was to synthesise all relevant considerations and arrive at a proportionate sentence, not to engage in arithmetical deductions from the maximum or standard non-parole period.
On the cocaine supply, the court found that the offender played an active and knowing role: he counted money, cut and packaged drugs, discussed profits and sourcing, directed others on occasion, and received directions from the Westman group on others. The court described him as proactive rather than merely compliant, and noted that he relished the profit his activity generated. On the MDMA supply, the court accepted that his awareness of the full quantity was limited, and treated objective seriousness accordingly.
In mitigation, the court gave weight to the early guilty plea, assigning a discounted indicative sentence for each offence. The court also accepted the offender's strong family support, his genuine engagement with rehabilitation, and the psychological evidence that personality disorders and drug dependence had made him vulnerable. Those factors did not excuse the conduct but were relevant to structuring the sentence, particularly in the assessment of special circumstances justifying an extended parole period.
A substantial finding of special circumstances was made, producing a parole period longer than one-third of the total sentence. This reflected the court's assessment that the offender had genuine prospects of rehabilitation and would benefit from extended supervision on release.
Orders Made
- Conviction recorded on both commercial drug supply charges
- Form 1 matters dealt with (sequences 3, 5, 6 of H72203034 and sequence 1 of H73059919); remaining sequences withdrawn and dismissed
- Forfeiture order made by consent under s 18(1) of the Confiscation of Proceeds of Crime Act 1989 for $39,950 seized
- Drug destruction order made for all seized drugs
- Cocaine supply: indicative sentence of 6 years (reduced from 8 years but for the plea), with a non-parole period of 3 years and 7 months
- MDMA supply: sentence of 3 years (reduced from 4 years but for the plea), with a parole period of 2 years
- Aggregate sentence of 7 years and 3 months, with a non-parole period of 4 years and 3 months and a parole period of 3 years
- Aggregate sentence backdated to 16 August 2019 (date of arrest)
- Earliest eligibility for parole: 15 November 2023; total sentence to expire 15 November 2026
Key Takeaways
- Rolled-up quantities, where multiple drug supply transactions are accumulated into a single charge, are an accepted sentencing approach in NSW, provided the court is careful not to double-count those same transactions when also considering Form 1 matters.
- Under Markarian, the sentencing task requires synthesis of all relevant factors into a proportionate outcome; the standard non-parole period and maximum penalty guide the discretion but do not mechanically determine the result.
- An offender's active, profit-driven role in a commercial drug operation, including directing others and managing logistics, weighs significantly on objective seriousness even where the broader organisation is loosely structured.
- Psychological vulnerability and drug dependence may inform how a sentence is structured, particularly in assessing rehabilitation prospects, but the District Court confirmed they do not constitute an excuse for commercial drug supply.
- A substantial finding of special circumstances, extending the parole period beyond the statutory default, was available here where the evidence supported genuine rehabilitation prospects and the benefit of longer post-release supervision.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(2) and 21A(2)(m)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)
Cases
- Hamzy v R (1994) 74 A Crim R 341 (rolled-up quantities)
- Jadron v R [2015] NSWCCA 217 (rolled-up quantities)
- Markarian v The Queen (2005) 228 CLR 357 (synthesis approach to sentencing)