Citation: R v Kovacev [2020] NSWDC 903
Court: District Court of New South Wales
Date: 12 March 2020
Judge(s): M L Williams SC DCJ
Background
The offender, a 58-year-old man, pleaded guilty to two offences under the Drug Misuse and Trafficking Act 1985: supplying 0.59 grams of heroin on a single occasion in December 2018, and ongoing supply of heroin across six occasions in January 2019, totalling 1.07 grams. Both offences related to street-level dealing in Surry Hills and the Sydney CBD.
The offender operated as a user-dealer, earning as little as $10 per small transaction. He used the modest proceeds to fund his own heroin dependency and to repay a debt of over $4,000. On arrest in April 2019, he candidly admitted his involvement and provided police with details of his operation.
The offender had a prior criminal history dating to 2003, including previous drug supply convictions. He had been living with major depressive disorder linked to the murder of his long-term partner in 1991, and had sustained a significant head injury in 2004. He had been on a disability support pension and prescribed antidepressants since 2014, and had been on a methadone program since 2012.
Legal Issues
- What aggregate sentence was appropriate, having regard to the objective seriousness of two drug supply offences at the lower end of the scale?
- What weight should be given to the offender's mental illness, drug addiction, and personal history as subjective mitigating factors?
- How should the sentencing court approach parity, given that a co-offender higher in the supply chain received only a Community Corrections Order and fines in the Local Court?
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the head sentence.
Decision
The court assessed both offences as sitting at the lower end of the scale of objective seriousness. The single supply involved a small quantity, and the ongoing supply, while repetitive, was of short duration, involved very small total amounts, and generated no substantial financial reward. The offender was an on-seller rather than a principal, with the co-offender occupying a higher position in the supply chain.
The 25% discount for early guilty pleas was applied without dispute. The court accepted the psychologist's opinion that there was a nexus between the offender's diagnosis of major depressive disorder and his offending behaviour. Following the Court of Criminal Appeal's approach in Barbieri v R, the court treated the mental health difficulties as a relevant subjective consideration. Drug addiction was also treated as a subjective matter, though not a mitigating factor in itself. The court found that specific deterrence was of reduced significance given the mental health nexus.
Parity with the co-offender was a complicating factor. The co-offender, who was higher in the supply chain but had no prior record and was young, received non-custodial orders in the Local Court. The court noted these parity considerations without resolving them in detail in the published remarks, but concluded that full-time custody remained appropriate given the offender's record and the nature of the offending.
The court found special circumstances, justifying a longer parole period than the statutory default. An aggregate sentence of 18 months' imprisonment was imposed, with a non-parole period of 10 months. As the non-parole period had already expired by the date of sentencing, the offender was eligible for release.
Orders Made
- The offender was convicted of each offence.
- Indicative sentence for Sequence 1 (single supply): 6 months' imprisonment.
- Indicative sentence for Sequence 6 (ongoing supply): 15 months' imprisonment.
- Aggregate sentence of 18 months' imprisonment, commencing 29 April 2019.
- Non-parole period of 10 months, expiring 28 February 2020.
- Special circumstances found.
- Sequences 2, 3, 4, 5, and 7 withdrawn.
Key Takeaways
- The District Court confirmed that a diagnosed mental illness with a demonstrated nexus to the offending conduct reduces the weight given to specific deterrence in the sentencing exercise, consistent with the approach in Barbieri v R.
- Drug addiction, while not a mitigating factor as such, remains a relevant subjective consideration that a sentencing court must take into account.
- A user-dealer operating at the lowest level of a supply chain, with minimal financial gain and small quantities, is likely to be assessed at the bottom end of the objective seriousness scale for drug supply offences.
- Parity considerations arise even where the co-offender was dealt with in a different court and at a different level of the supply chain, though a prior record can justify a materially different outcome.
- Special circumstances can be found where an offender's prospects of rehabilitation depend on an extended period of supervision on parole to address ongoing mental health and drug dependency needs.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
Cases
- Barbieri v R [2016] NSWCCA 295