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District Court 8 November 2024

R v Ersegovic

[2024] NSWDC 596

DrugsFraud & dishonestyPublic order & justice offences
CRIME SENTENCING PROCEEDS OF CRIME NON EXCULPATORY DURESS.

Citation: R v Ersegovic [2024] NSWDC 596
Court: District Court of New South Wales
Date: 8 November 2024
Judge: Anderson SC DCJ

Background

The offender was before the District Court for sentencing on four Commonwealth offences and one New South Wales drug possession offence. The Commonwealth charges arose from his involvement in activities connected to the storage and attempted possession of large quantities of methamphetamine, dealing in the identification information of multiple individuals to create fraudulent identities and bank accounts, and handling the proceeds of crime.

The factual background involved the offender leasing a storage unit under a false name in late 2022. When the unit owner investigated unpaid rent months later, police were alerted and discovered approximately 15,976 grams of methamphetamine stored inside. A commercial quantity of methamphetamine for the purposes of the relevant offence requires only 750 grams, so the quantity found substantially exceeded that threshold. Separately, police located a storage cage containing a range of items used to create and maintain false identities, including driver's licences in the names of eleven other individuals, Medicare cards, SIM cards, tracking devices, and counter-surveillance equipment.

A further Commonwealth matter was taken into account pursuant to the s 16BA schedule mechanism (which allows a court to take into account additional related offences when sentencing for a primary offence, with the offender's admission). The offender also faced a separate NSW state charge involving possession of 1.17 grams of MDMA, along with a Form 1 matter relating to possession of anabolic steroids.

  • What sentence was appropriate across four Commonwealth offences and one state offence, given the operation of two parallel sentencing regimes?
  • What discount, if any, applied to the Commonwealth offences for a plea of guilty, given that the NSW Early Appropriate Guilty Plea legislation does not apply to Commonwealth offences?
  • How should the s 16BA schedule matter be treated in fixing the sentence for the primary identification information offence?
  • What weight should be given to non-exculpatory duress as a mitigating factor in the circumstances?

Decision

Anderson SC DCJ sentenced the offender under Part 1B of the Crimes Act 1914 (Cth) for the Commonwealth offences, which requires that the sentence reflect the severity appropriate to all the circumstances. The Court considered the full list of relevant factors under s 16A(2) of that Act. No standard non-parole period applied to any of the Commonwealth offences.

The Court extended a 25% discount for the guilty plea to the Commonwealth offences, even though the NSW Early Appropriate Guilty Plea legislation does not technically govern Commonwealth sentencing. The Court reasoned that the timing of the plea, its utilitarian value, and the offender's demonstrated willingness to facilitate the course of justice all supported the same reduction that would apply to the NSW offence.

On the s 16BA schedule matter, the Court confirmed that taking an additional offence into account operates to increase the penalty otherwise appropriate for the primary offence, with particular weight given to personal deterrence and the community's entitlement to retribution. The Court applied that approach when dealing with the identification information offence at sequence 15, incorporating the schedule offence into the sentencing exercise.

The judgment noted the catchword of "non-exculpatory duress," signalling that duress was raised but did not excuse the offending. While the full reasoning on this point is not reproduced in the available text, the Court's ultimate sentence reflected that any such circumstances were treated as mitigating in degree rather than exculpatory. The NSW drug possession charge was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), meaning a conviction was recorded but no further penalty was imposed.

Orders Made

  • Sequence 10 (NSW drug possession, MDMA): Convicted; no further penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The related Form 1 matter (anabolic steroids) also noted.
  • Sequence 13 (s 307.8(1) Criminal Code, possession of commercially quantified methamphetamine reasonably suspected of unlawful importation): Indicative sentence of 6 years.
  • Sequence 15 (s 372.1(1) Criminal Code, dealing with identification information to facilitate an offence), incorporating the s 16BA schedule matter: Indicative sentence of 1 year and 6 months.
  • Sequence 19 (ss 307.6(1) and 11.1 Criminal Code, attempted possession of a marketable quantity of methamphetamine): Indicative sentence of 4 years.
  • Sequence 20 (s 400.6(1) Criminal Code, dealing with proceeds of crime exceeding $10,000): Indicative sentence of 1 year and 6 months.
  • Total term of imprisonment: 8 years, commencing 26 September 2023, expiring 25 September 2031.
  • Non-parole period: 5 years, commencing 26 September 2023, expiring 25 September 2028 (representing 62.5% of the head sentence).
  • Proceeds of crime: Forfeiture orders made by consent under s 316 of the Proceeds of Crime Act in respect of seized property.

Key Takeaways

  • A 25% guilty plea discount was applied to the Commonwealth offences by analogy with the NSW regime, based on the utilitarian value of the plea and the timing of its entry, even though the NSW Early Appropriate Guilty Plea legislation does not govern Commonwealth sentencing.
  • Under the s 16BA mechanism, taking an additional offence into account when sentencing for a primary offence increases the penalty otherwise appropriate, with particular weight accorded to personal deterrence and retributive considerations.
  • Non-exculpatory duress, where raised, operates at most as a mitigating factor and does not excuse the offending conduct.
  • Possessing a quantity of methamphetamine that vastly exceeds the commercial quantity threshold is treated as a significant aggravating feature in the sentencing exercise.
  • Where parallel Commonwealth and NSW sentencing regimes apply in the same proceeding, each regime governs its respective offences, and the Court must apply the correct legislative framework to each charge separately.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including Part 1B, ss 16A(2), 16BA, 19AL
- Criminal Code Act 1995 (Cth), ss 307.6(1), 307.8(1), 372.1(1), 400.6(1), 11.1(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1986 (NSW), s 10(1)
- Proceeds of Crime Act 2002 (Cth), s 316

Cases:
- R v McGregor [2024] NSWCCA 200