Citation: R v Kaplantzi [2023] NSWDC 42
Court: District Court of New South Wales
Date: 17 March 2023
Judge(s): Colefax SC DCJ
Background
A 52-year-old man appeared for sentencing on three counts of supplying prohibited drugs under the Drug Misuse and Trafficking Act 1985 (NSW). Police had established a strike force targeting drug supply in Sydney's southwest, identifying his adult son as a commercial-level supplier. Intercepted phone calls in March 2020 revealed the offender placing coded orders for cocaine and MDMA with his son.
On 24 March 2020, police surveillance captured the son handing items to the offender at a Liverpool property. A subsequent vehicle search uncovered 214.7 grams of MDMA, 56.2 grams of cocaine, and 2.268 kilograms of cannabis. All three counts were treated as deemed supply matters under the legislation.
A central dispute at sentencing concerned the offender's role: specifically, whether the drugs were acquired solely for personal use or partly for onward supply. The offender did not give sworn evidence, and the court was left to weigh competing accounts in expert reports.
Legal Issues
- What was the objective seriousness of each of the three supply offences?
- Whether the offender acquired the drugs solely for personal use or partly for commercial supply
- What weight, if any, should be given to a psychological report where the author had a potential conflict of interest arising from a departure from the Expert Witness Code of Conduct?
- What aggregate sentence was appropriate, including whether special circumstances warranted a variation of the standard non-parole period ratio?
Decision
The court found it could not be satisfied, on the balance of probabilities, that all three substantial quantities of prohibited drugs were obtained solely for the offender's personal use. The accounts across the sentencing assessment report and the psychological report were internally inconsistent and mutually contradictory. Because the offender advanced no sworn version of events, the court was left with conflicting hearsay. The court accepted, however, that given the offender's long history of drug dependence, some portion of the drugs may have been acquired for personal use, though no precise proportion could be determined. Each offence was assessed as just below mid-range of objective seriousness.
On the question of the expert report, the court made pointed observations about a psychologist who simultaneously purported to comply with the Expert Witness Code of Conduct while offering his professional services to the offender. The court identified this as a glaring conflict of interest, noting that in an appropriate case such a departure could lead to a significant reduction in the weight afforded to the report. As no submission was made by the Crown on this point in the present proceedings, the issue did not alter the outcome, but the court's concern was clearly expressed.
The court applied a discount of 10 per cent on each count, reflecting a late plea. It also found special circumstances under the aggregate sentencing framework, given the offender's significant physical disabilities, which would make a term of full-time imprisonment harder to endure. This justified varying the standard ratio between the head sentence and the non-parole period.
Orders Made
- Count 2 (MDMA, commercial quantity): indicative sentence of 3 years 1 month imprisonment (after 10% discount)
- Count 3 (cocaine, indictable quantity): indicative sentence of 1 year 9 months imprisonment (after 10% discount)
- Count 4 (cannabis, indictable quantity): indicative sentence of 1 year 9 months imprisonment (after 10% discount)
- Aggregate sentence: 4 years 6 months imprisonment
- Non-parole period: 3 years, commencing 29 October 2022 and expiring 28 October 2025
- Balance of sentence: 1 year 6 months, expiring 28 April 2027
- Sentence backdated by 139 days to account for pre-sentence custody
Key Takeaways
- Where an offender does not give sworn evidence and the competing accounts in tendered reports are inconsistent, a sentencing court may decline to find, on the balance of probabilities, that drugs were held solely for personal use, even where a history of personal drug use is established.
- An expert witness who simultaneously purports to comply with the Expert Witness Code of Conduct while prospectively offering paid services to the party who retained them presents a glaring conflict of interest. The District Court noted this could warrant a significant reduction in the weight given to the report in an appropriate case.
- Under the Drug Misuse and Trafficking Act 1985, deemed supply provisions applied to all three counts, meaning proof of an intention to sell was not required to establish the offence itself; the dispute about purpose went only to objective seriousness and role.
- Physical disabilities that make a term of imprisonment more burdensome can ground a finding of special circumstances justifying departure from the standard non-parole period ratio, even where the offender has prior custodial experience.
- Applying Bugmy v R (2013) 249 CLR 571, the court's consideration of the offender's background and personal circumstances informed its assessment of subjective factors, including prospects of rehabilitation, which it assessed as guarded.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
Cases
- Bugmy v R (2013) 249 CLR 571
Other
- Expert Witness Code of Conduct (NSW), cl 2