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District Court 21 November 2022

R v Ristevska

[2022] NSWDC 577

DrugsPublic order & justice offences

Citation: R v Ristevska [2022] NSWDC 577
Court: District Court of New South Wales
Date: 21 November 2022
Judge: Haesler SC DCJ

Background

The offender had previously been sentenced by the same judge in 2016 to an aggregate three years and nine months imprisonment for two counts of drug supply. In May and June 2021, police established that she and her partner were again supplying illicit drugs, this time operating a street-level distribution business from their home in southern Wollongong, sourcing methylamphetamine and heroin from upline suppliers in Sydney.

The offender's role within the group included arranging for customers to attend the premises, storing and processing mid to large quantities of drugs, and handling cash proceeds. She acted under the direction of her partner, who controlled pricing and quantities. Two co-participants were arrested while returning from a Sydney drug run; the offender was arrested at home, where police also found cash and a prohibited weapon.

Following her initial arrest and a brief period on bail, the offender was caught communicating with an upline supplier about recovering the seized drugs. She was rearrested in September 2021 and remained in custody through to sentencing.

  • Whether the four offences (two counts of drug supply, knowingly dealing with proceeds of crime, and participation in a criminal group) warranted a full-time custodial sentence given the offender's limited hands-on role and subjective circumstances
  • How to assess objective seriousness where both prosecution and defence agreed the criminal group charge was the most serious offence, despite it carrying the lowest maximum penalty of the four counts
  • How to structure accumulation and concurrence of sentences across counts that were part of the same overall enterprise but involved discrete acts of criminality
  • Whether a 25% discount for early guilty pleas was appropriate and how to preserve that discount within an aggregate sentence
  • Whether special circumstances existed to justify a longer parole period

Decision

Haesler SC DCJ held that the offender's limited direct involvement in the drug purchases did not reduce her culpability on the supply charges because her purpose was to profit from distribution, and it was that purpose being punished. The operation was characterised as a low-level, street-facing business, with customers attending the home directly, which the court noted rendered the enterprise particularly vulnerable to detection and indicated its place near the bottom of drug supply hierarchies.

On the criminal group charge, the court accepted that the offender played some independent role beyond merely following instructions, and that the presence of a prohibited weapon at the drug premises was an aggravating factor. However, care was taken not to double-count the Form 1 matters (conducting drug premises and possessing a prohibited weapon), which were taken into account on the criminal group count but not sentenced separately.

The court applied the principle from De Simoni that sentencing must be confined to the offences charged. Because the offender was not charged with the more serious offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act 1985, the court was careful not to treat the conduct as though it amounted to that more serious offence. The criminal group sentence comprehended the proceeds of crime matter, and the methylamphetamine supply sentence comprehended the heroin supply, but partial accumulation was required because the offences had distinct aspects.

Prior convictions for drug supply in 2014 and 2015 disentitled the offender to leniency and increased the weight given to personal deterrence and community protection. Despite guarded prospects of rehabilitation, the court found special circumstances to justify a longer parole period, with the minimum custodial term fixed to reflect the seriousness of the offending and the need for personal deterrence.

Orders Made

  • Supplying less than the commercial quantity of drug (methylamphetamine, 469g): 18 months imprisonment
  • Supplying less than the commercial quantity of drug (heroin, 46g): 18 months imprisonment
  • Knowingly deal with proceeds of crime ($28,245): 9 months imprisonment
  • Participate in a criminal group (taking into account Form 1 matters): 2 years 3 months imprisonment
  • Aggregate sentence: 3 years imprisonment
  • Non-parole period: 1 year 9 months, commencing 28 August 2021, expiring 27 May 2023, with release to parole and supervision on that date
  • Balance of sentence: 1 year 3 months, commencing 28 May 2023, expiring 27 August 2024
  • Sentence backdated 450 days to credit pre-sentence custody
  • Finding of special circumstances made

Key Takeaways

  • The District Court confirmed that sentencing for a drug supply charge must focus on the offence actually charged, not on a more serious variant. Where the offender was not charged with ongoing drug supply under s 25A, the conduct could not be treated as though it amounted to that offence, consistent with De Simoni.

  • Where both prosecution and defence agreed that the objectively most serious offence carried the lowest maximum penalty, the District Court treated this as illustrating the need for individualised rather than formulaic sentencing, citing The Queen v Pham and Hili.

  • A hands-off organisational role in a drug supply operation can still attract significant punishment. The court found that the offender's purpose of profiting from distribution was the relevant consideration, even though she did not physically handle the drugs during the relevant purchases.

  • Prior convictions for relevantly similar offending disentitle an offender to leniency and shift greater sentencing weight toward personal deterrence and community protection.

  • Form 1 matters taken into account on sentencing for a related principal offence must not be counted twice when also informing the court's assessment of objective seriousness.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Crimes Act 1900 (NSW), ss 93T, 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D

Cases
- Afu v R [2017] NSWCCA 246
- De Simoni v The Queen (1981) 147 CLR 383; [1981] HCA 31
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Mill v The Queen (1988) 166 CLR 59
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Ristevska, unreported, District Court NSW, 21 September 2016