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District Court 13 December 2023

R v Donevski

[2023] NSWDC 603

Drugs
CRIME SENTENCE SUPPLY LARGE COMMERCIAL QUANTITY OF GBL

Citation: R v Donevski [2023] NSWDC 603
Court: District Court of New South Wales
Date: 13 December 2023
Judge: Bourke SC DCJ

Background

The offender, a 54-year-old man, was found guilty by jury in September 2023 of supplying a prohibited drug in a quantity not less than the large commercial quantity. The drug was gamma-butyrolactone (GBL), a prohibited substance. Police had been conducting surveillance on a broader drug supply operation when they observed the offender collecting items from another person and driving away in his own vehicle, which was later stopped and searched.

Inside the car police found 12 unlabelled one-litre bottles containing a total of 11,509.2 grams of GBL at 87 to 90 percent purity. The prescribed large commercial quantity for GBL is 4,000 grams, meaning the amount found was almost three times that threshold. The offender was not arrested on the day but was charged several months later.

The sentencing court was asked to determine the appropriate penalty, having regard to the objective seriousness of the offence, the offender's subjective circumstances, and the purposes of sentencing under the relevant legislation.

  • What was the objective seriousness of this particular example of the offence, taking into account the quantity and purity of the drug and the offender's role?
  • What weight should be given to the offender's subjective circumstances, including mental health, personal history, drug dependence, and time spent on restrictive bail conditions?
  • Whether parity considerations arose from a co-offender's earlier sentence in related proceedings.
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory ratio.

Decision

Objective seriousness: Bourke SC DCJ assessed the offender's role as essentially that of a courier. While the drugs originated from a broader organised criminal enterprise run by another person, the offender's own involvement was characterised as peripheral: he performed a simple transfer of the drugs using his own registered vehicle, and placed some bottles in a bag alongside personal items bearing his name. The court found that any financial benefit to the offender was modest, rejecting the notion that the offence reflected genuine "organised criminal activity" on the offender's part. Taking all of these matters together, the court placed the offence towards or in the low range of objective seriousness for this type of offending.

Subjective matters: The court received and accepted a psychological report outlining the offender's difficult upbringing, including exposure to financial hardship, disrupted schooling, and a mother with serious mental health difficulties. The offender had a long history of heroin dependence and problematic gambling. The court also noted his clean criminal record (save for minor prior matters), the punitive effect of restrictive bail conditions imposed over an extended period, and his genuine mental health needs. These subjective matters were treated as mitigating factors.

Parity: The court considered the sentence imposed on a co-participant in the broader drug enterprise but concluded that the two cases were of sufficiently different character that no true parity considerations arose. The co-participant had pleaded guilty to manufacturing and supply offences and had a proceeds of crime matter taken into account, making direct comparison inappropriate.

Special circumstances: The court found special circumstances warranted an adjusted ratio between head sentence and non-parole period, on the basis that this was the offender's first period of full-time custody and his mental health issues were likely to require support during the transition to release.

Orders Made

  • Head sentence of three years imprisonment, commencing 26 September 2023 and expiring 25 September 2026.
  • Non-parole period of one year and ten months, expiring 25 July 2025.
  • Direction that a copy of the psychological report be provided to Corrective Services and Justice Health.

Key Takeaways

  • The District Court confirmed that a courier role, even in a large commercial quantity drug supply, can place an offender's conduct towards the lower end of objective seriousness when the role is peripheral, unsophisticated, and likely carried modest financial reward.
  • Where a defendant's involvement in a broader criminal enterprise is limited to performing a simple delivery task, courts may be reluctant to characterise that conduct as "organised criminal activity" attributable to the offender personally, even if the enterprise as a whole is organised.
  • Under the Court of Criminal Appeal's analysis in Bott v R [2023] NSWCCA 255, GBL has been treated as a "low reward" drug, and sentencing courts may draw on that characterisation when assessing the likely financial benefit to a participant.
  • Parity analysis requires comparison of genuinely comparable offending. In dismissing parity arguments here, the court applied the principle from Green v The Queen that courts must compare "like with like" before allowing a co-offender's sentence to influence the outcome.
  • A first period of full-time custody, combined with established mental health needs, can constitute special circumstances justifying a departure from the standard ratio between head sentence and non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- Bott v R [2023] NSWCCA 255
- Bugmy v The Queen (2013) 249 CLR 571
- Green v The Queen (2011) 244 CLR 462
- R v Alfar (Unreported, 7 August 2023)
- R v Millwood [2012] NSWCCA 2