AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 10 August 2022

R v Barlezizian

[2022] NSWDC 379

Drugs

Citation: R v Barlezizian [2022] NSWDC 379
Court: District Court of New South Wales
Date: 10 August 2022
Judge(s): Bennett SC DCJ

Background

The offender appeared for sentencing on four charges under the Drug Misuse and Trafficking Act 1985, following guilty pleas entered in the Local Court during committal proceedings in November 2021. The charges arose from two entirely separate criminal investigations, conducted by different police task forces with no knowledge of each other's activities.

The first enterprise involved ongoing supply of methylamphetamine at Forest Lodge between late February and late March 2020 (Sequence 1). The second involved the transport of multiple drugs as an Uber driver on 11 July 2020 at Topi Topi, giving rise to charges of supplying a large commercial quantity of methylamphetamine (0.5343 kg), a commercial quantity of gamma-butyrolactone (1 kg), and a quantity of ketamine (309.8 g) (Sequences 3, 5, and 28). Additional offences involving cocaine and a small amount of amphetamine were listed on a Form 1 to be taken into account on sentence for Sequence 3.

The offender was arrested on 11 July 2020 and had been in continuous custody since that date. He claimed to occupy a low-level role in both enterprises, but the sentencing judge expressed reservations about the credibility of that claim after analysing text messages and the content of a police interview conducted in preparation for sentencing.

  • Whether the offender occupied a genuinely low-level role in each criminal enterprise, given inconsistencies between his out-of-court representations and the text message evidence on his phone
  • The appropriate discount to apply for guilty pleas entered during committal proceedings under Part 3 Division 1A of the Crimes (Sentencing Procedure) Act 1999
  • The applicable discounts for assistance to authorities (addressed in a separate confidential judgment)
  • Whether special circumstances existed to justify a non-parole period that departs from the standard ratio
  • The construction of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 across multiple offences of varying seriousness

Decision

The sentencing judge found that the two investigations concerned distinct and unrelated enterprises, and that the agreed facts document had been drafted in a way that obscured this. The confusion was significant enough that the original hearing had to be adjourned to allow the parties to address the court's concerns. Because the offender did not give evidence, the court applied the caution identified in Regina v Qutami and Imbornone v R regarding unsworn, untested out-of-court representations, including those about the offender's role and personal mitigating circumstances.

A 25% discount was applied for the guilty pleas under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. Additional discounts for assistance to authorities (15%) and anticipated future assistance (5%) were applied. The reasoning underlying those assistance discounts is contained in a separate confidential judgment, not for public distribution.

The court found special circumstances warranting a non-parole period proportionately shorter than the standard ratio. Relevant factors included the offender's lack of prior custodial experience, demonstrated progress toward rehabilitation, the need for an extended parole period to support community reintegration, restrictions arising from his cooperation with authorities, the burden of custody during the COVID-19 pandemic (including the offender's own infection at the time of sentencing), the loss of both parents while in custody, and the inability to meet a grandchild born after his arrest.

Orders Made

  • Aggregate sentence of 7 years' imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, taken to have commenced on 11 July 2020
  • Non-parole period of 4 years, expiring 10 July 2024
  • Balance of term of 3 years, commencing at expiration of the non-parole period and expiring 10 July 2027
  • Special circumstances found
  • Discounts applied: 25% for plea of guilty, 15% for assistance to authorities, 5% for future assistance
  • No other orders sought or made

Key Takeaways

  • Where a statement of agreed facts obscures a material distinction between separate criminal enterprises, a sentencing court may adjourn proceedings to afford the parties an opportunity to address the misperception before sentence is imposed.

  • Under Part 3 Division 1A of the Crimes (Sentencing Procedure) Act 1999, a guilty plea entered during committal proceedings attracts a 25% discount; the court may apply further reductions under s 23 for assistance to authorities.

  • An offender's failure to give evidence does not preclude reliance on mitigating claims, but the court applied the caution in Qutami and Imbornone that unsworn, untested representations carry reduced weight, including assertions about a low-level role in a drug enterprise.

  • Special circumstances can be established by a combination of factors: first-time custody, rehabilitation progress, an extended reintegration need, cooperation-related restrictions, pandemic conditions, and significant personal loss suffered during pre-sentence detention.

  • The District Court treated the two criminal enterprises as analytically distinct for sentencing purposes, even though the offender's activities overlapped in time and the charges were dealt with together in aggregate sentencing.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 25D(2)(a), 37, 53A; Part 3 Division 1A; Part 4 Division 1A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- Imbornone v R [2017] NSWCCA 144
- Muldrock v R (2011) HCA 39
- R v Olbrich [1999] 199 CLR 270
- Regina v Qutami [2001] NSWCCA 353
- s 37 Crimes (Sentencing Procedure) Act 1999 No 1 [2002] NSWCCA 518
- Tepania v R [2018] NSWCCA 247