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District Court 25 February 2022

R v Kaskaniotis; R v Mathias

[2022] NSWDC 56

Drugs
CRIMINAL LAW D RUG OFFENCES S UPPLY PROHIBITED DRUG P LEA OF GUILTY R ELEVANT FACTORS ON SENTENCE C O

Citation: R v Kaskaniotis; R v Mathias [2022] NSWDC 56
Court: District Court of New South Wales
Date: 25 February 2022
Judge: Coleman SC DCJ

Background

Two co-offenders appeared for sentence after each pleading guilty to two counts of supplying not less than the large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences involved the supply of significant quantities of MDMA and cocaine. One co-offender faced two additional counts of supplying not less than the commercial quantity of a prohibited drug, and both sought to have further offences taken into account on a Form 1 (a mechanism under NSW law allowing related charges to be considered during sentencing without a separate conviction being recorded).

The offending took place between July and September 2020 and involved encrypted communications, cash transactions, and money transfers to Lebanon. The supplies were made to police operatives conducting lawful controlled operations, meaning the drugs did not reach the broader market. Importantly, the court noted that neither offender knew at the time that they were dealing with law enforcement.

One offender was arrested and refused bail on 1 September 2020 and remained in custody throughout. The other was arrested on the same date, granted conditional bail in December 2020, and had served approximately three months and fourteen days in custody by the time of sentencing.

  • What aggregate sentences were appropriate for co-offenders convicted of large commercial drug supply offences, having regard to the statutory maximum (life imprisonment) and the standard non-parole period of 15 years under s 25(2) of the Drug Misuse and Trafficking Act 1985?
  • How should the 25% guilty plea discount be applied across multiple counts and aggregated into a single sentence?
  • What weight should be given to the offenders' subjective circumstances, including drug addiction and mental health issues, in the context of serious drug trafficking offences?
  • How should time spent in pre-sentence custody be accounted for in setting the commencement date of each sentence?
  • Whether special circumstances existed to justify a parole period that diverges from the statutory norm (under the Crimes (Sentencing Procedure) Act 1999 (NSW), the non-parole period is ordinarily at least three-quarters of the head sentence).

Decision

The court assessed the objective seriousness of the offending as significant. The quantities involved substantially exceeded the large commercial threshold, the offending involved sophisticated methods including encrypted messaging applications, pre-surveillance of meeting locations, and international money transfers. General and specific deterrence were identified as important sentencing considerations, though the court took into account that the drugs were supplied to police operatives and did not reach the community.

Each offender's subjective circumstances were considered individually. The court had regard to psychological and psychiatric reports, including evidence of drug dependence and mental health conditions. The court directed that those reports be produced to Corrective Services with a recommendation that appropriate treatment programs and medication be made available.

A 25% discount was applied to each indicative sentence reflecting the utilitarian value of the guilty pleas. The court then imposed aggregate sentences, which consolidate multiple counts into a single head sentence and non-parole period, rather than making each sentence cumulative. Special circumstances were found in both cases, producing non-parole periods shorter than the standard statutory proportion.

The court sentenced each offender by backdating the commencement of sentence to account for pre-sentence custody, as required by s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

Kaskaniotis:
- Count 1 (with Form 1): indicative term of 6 years, indicative non-parole period of 3 years
- Count 3: indicative term of 7 years and 6 months, indicative non-parole period of 3 years and 9 months
- Count 4: indicative term of 3 years, indicative non-parole period of 18 months
- Count 5 (with Form 1): indicative term of 3 years, indicative non-parole period of 18 months
- Aggregate sentence: 12 years imprisonment, non-parole period of 6 years
- Sentence backdated to 13 November 2021; expires 12 November 2033; first eligible for parole 12 November 2027

Mathias:
- Count 1 (with Form 1): indicative term of 4 years and 6 months, indicative non-parole period of 2 years and 3 months
- Count 3: indicative term of 6 years, indicative non-parole period of 3 years
- Aggregate sentence: 7 years imprisonment, non-parole period of 3 years and 6 months
- Sentence backdated to 1 September 2020; expires 31 August 2027; first eligible for parole 29 February 2024

Key Takeaways

  • The District Court applied aggregate sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW) in joint proceedings involving co-offenders, setting indicative sentences for each count before arriving at a single combined term for each offender.
  • A standard 25% guilty plea discount applied across all counts, with the court rounding indicative sentences down to months before constructing the aggregate.
  • Special circumstances were found for both offenders, producing non-parole periods at approximately half the head sentence rather than the usual statutory minimum of three-quarters, reflecting rehabilitation prospects, mental health needs, and the particular circumstances of each offender.
  • The fact that drug supplies were made to police operatives in controlled operations (meaning drugs did not enter the market) was a mitigating factor, but the court noted it carried limited weight because neither offender knew they were dealing with law enforcement and both willingly repeated the conduct.
  • Pre-sentence custody was factored into the commencement dates of both sentences, with one offender receiving credit for over seventeen months in custody before sentence was formally imposed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 11, 21A, 44, 47, 53A, 54B

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
- Brown (aka Davis) v The Queen [2020] VSCA 60
- DG v R [2017] NSWCCA 139
- El Kheir v R [2019] NSWCCA 288
- Hanh Thi Nguyen v R [2011] NSWCCA 92
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Johnson v The Queen [2004] HCA 15
- Markarian v The Queen (2005) 228 CLR 357
- McKinnon v R [2020] NSWCCA 106
- Melikian v R [2008] NSWCCA 156
- Parente v R (2017) 96 NSWLR 633
- R v Chan [2000] NSWCCA 345
- R v Dang [2005] NSWCCA 430
- R v DW [2012] NSWCCA 66
- R v Edwards (1996) 90 A Crim R 510
- R v Farrell [2014] NSWCCA 30
- R v Fowler [2003] NSWCCA 321
- R v MacDonnell [2002] NSWCCA 34
- R v MAK and MSK [2006] NSWCCA 381
- R v McLean [2020] NSWCCA 344
- R v Peter Michael Clark (NSW Court of Criminal Appeal, 15 March 1990, unrep)