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District Court 18 August 2023

R v Voukelatos

[2023] NSWDC 304

DrugsFirearms & weapons

Citation: R v Voukelatos [2023] NSWDC 304
Court: District Court of New South Wales
Date: 18 August 2023
Judge: Bennett SC DCJ

Background

The offender, a man operating under a street identity derived from his given names, pleaded guilty to two principal offences: supplying a commercial quantity of cocaine between December 2021 and April 2022 in Roselands, and possessing an unlicensed pistol (a gel ball air gun) on 29 April 2022. He was arrested on 29 April 2022 and had remained in custody since that date.

The offending arose from Strike Force Giovanni, which investigated an organised drug supply operation. The offender ran a telephone-based call-centre model through which customers ordered cocaine deliveries. Over approximately 18 weeks, 444 bags totalling 266.4 grams of cocaine were supplied, generating approximately $133,200. The offender directed couriers, including family members, to deliver drugs to arranged locations. Controlled purchases were conducted by investigators, confirming his central role.

In addition to the two principal offences, the offender asked the court to take into account 13 further offences on two Form 1 documents. These included seven counts of supplying a prohibited drug, one count of directing a criminal group, one count of dealing with proceeds of crime, three counts of possessing a prohibited drug, and two further firearms-related offences.

  • What aggregate sentence appropriately punished the totality of the offending across two principal offences and numerous Form 1 matters?
  • How should Form 1 offences affect the sentences imposed for the principal offences?
  • What discount applied for the offender's early guilty pleas?
  • Were there special circumstances justifying a longer-than-standard parole period?
  • What weight should be given to mitigating factors including remorse, age, background, and rehabilitation prospects?

Decision

Bennett SC DCJ sentenced the offender by applying the instinctive synthesis method, weighing objective seriousness, personal circumstances, remorse, and the Form 1 offences against the guilty plea discount. The principal drug offence carried a maximum of 20 years' imprisonment with a standard non-parole period of 10 years. The firearms offence carried a maximum of 14 years with a standard non-parole period of 4 years.

On the Form 1 offences, his Honour applied the principle from Attorney General's Application No. 1 of 2002 that such offences must impinge on the principal sentence by increasing it above what would have been imposed for the principal offence alone, reflecting heightened personal deterrence and the community's entitlement to retribution. Having taken those matters into account, a 25% discount was applied to each principal sentence for the early guilty pleas.

The offender's background, including his relatively young age, his relationship, and his employment prospects, were accepted as establishing special circumstances warranting a longer parole period than would ordinarily apply. The court assessed his rehabilitation prospects as moderate at best, noting his prior criminal history, but accepted his sincerity in wishing to avoid further offending.

Remorse was acknowledged, including a letter written during the hearing. However, the court observed that the offender had not fully acknowledged all aspects of his criminal enterprise, and this limited the weight given to claimed contrition. No additional penalty was imposed for this, but it was a factor in calibrating the mitigation afforded.

Orders Made

  • Conviction recorded for supply of a commercial quantity of cocaine (Sequence 6) and possession of a pistol (Sequence 18).
  • For Sequence 6 (including Form 1 offences): imprisonment of 6 years with a non-parole period of 3 years 6 months.
  • For Sequence 18 (including Form 1 offences): imprisonment of 2 years 3 months with a non-parole period of 1 year 3 months.
  • Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999: non-parole period of 3 years 9 months from 29 April 2022, expiring 28 January 2026; parole period of a further 2 years 6 months, expiring 28 July 2028.
  • Order under s 18(1) of the Confiscation of Proceeds of Crimes Act 1989 that $3,260.00 in cash seized from the offender's Roselands residence be forfeited to the State.

Key Takeaways

  • Form 1 offences do not simply sit alongside the principal sentence; the District Court confirmed they must increase the principal sentence above what it would otherwise have been, to reflect greater personal deterrence and community retribution (applying Attorney General's Application No. 1 of 2002).
  • A 25% guilty plea discount applied under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 where pleas were entered in the Local Court and maintained in the District Court.
  • Special circumstances were established on the basis of the offender's age, his personal circumstances, and his rehabilitation prospects, justifying an extended period on parole beyond the one-third default ratio.
  • Expressions of remorse carry reduced weight where an offender has not acknowledged the full extent of their criminal conduct, even though no additional penalty attaches to that omission.
  • Under the aggregate sentencing regime in s 53A, the court identifies individual component sentences for each principal offence before arriving at a single combined term that reflects the totality of the offending.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 39(1)(a), 65(3)
- Crimes Act 1900 (NSW), ss 93T(4A), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 32, 53A
- Confiscation of Proceeds of Crimes Act 1989 (NSW), s 18(1)
- Customs Act 1901 (Cth)

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Imbornone v R [2017] NSWCCA 144
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Osenkowski (1982) 5 A Crim R 394
- R v Qutami [2001] NSWCCA 353
- R v Valentini (1989) 46 A Crim R 23
- Regina v Henry et Al [1999] NSWCCA 111
- Tepania v R [2018] NSWCCA 247
- The Queen v Olbrich [1999] HCA 54
- Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14