Citation: R v Tsoumbanellis [2024] NSWDC 657
Court: District Court of New South Wales
Date: 10 December 2024
Judge(s): Neilson DCJ
Background
A 70-year-old man pleaded guilty to two offences arising from a police search of his Ultimo apartment on 18 October 2023. Police executed a search warrant and found multiple packages of methylamphetamine, ecstasy, a digital scale, mobile phones, and $24,950 in cash concealed under a bed. When asked whether he was selling drugs, the offender immediately admitted it.
The offender was living at the premises with his partner and her two young children, aged eight and five. During a subsequent electronically recorded interview, he admitted receiving drug supplies worth approximately $45,000 every three months, selling in small quantities of two to four grams, and earning around $10,000 profit per supply cycle. He acknowledged the cash represented proceeds from drug sales.
The offender had an extensive criminal history that included multiple prior drug supply convictions, custodial sentences, and a pattern of returning to drug dealing shortly after each release from prison. The current offending occurred while he was still on parole.
Legal Issues
- What sentence was appropriate for commercial drug supply and dealing in proceeds of crime, given the offender's age (70 years), health, criminal history, and persistent reoffending?
- Whether the aggravating factor under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (supply in the presence of children) was technically established, and what weight the children's presence at the premises carried regardless.
- Whether special circumstances existed to justify departing from the standard statutory ratio between the head sentence and non-parole period.
Decision
Issue 1: Seriousness of the offending and role in supply chain
The offender was not at the top of the supply chain but was an active mid-level distributor, selling methylamphetamine obtained from a supplier above him and generating approximately $40,000 per year in profit, on which he paid no tax, while simultaneously receiving government pension payments (at [12]-[13]). His admissions to police were extensive and unambiguous (at [9]-[11]). The court treated his parole status at the time of offending as an aggravating factor (at [25]).
Issue 2: Presence of children at the premises
The court concluded that the specific statutory aggravating factor under s 21A(2)(ea), which applies where prohibited drugs are supplied in the presence of children, was not technically established because no evidence showed drugs were supplied to anyone while the children were present (at [27]-[28]). However, the court found that drugs were stored throughout the premises, including on the balcony table and in the kitchen, in locations accessible to the children without any apparent protective measures. This exposure to danger was treated as increasing the offender's culpability, particularly in relation to the Form 1 matter of knowingly allowing the premises to be used as drug premises (at [28]).
Issue 3: Personal circumstances and health
The court considered a forensic psychology report diagnosing the offender with methamphetamine use disorder. His addiction appeared to have begun around age 60, following coronary bypass surgery and retirement from work as a chef (at [34]-[39]). Justice Health records indicated ongoing cardiac conditions but no acute risk that would make continued imprisonment unsafe (at [44]-[46]). The court acknowledged the offender's difficult background, including a poverty-stricken upbringing in Greece and limited formal education, but found that his persistent reoffending across many years, including repeatedly returning to dealing shortly after release, meant a fulltime custodial sentence was required (at [43]).
Issue 4: Special circumstances and sentence structure
The court imposed an aggregate sentence of four years and six months with a non-parole period of three years, departing from the standard statutory ratio between non-parole period and head sentence (at [52]-[55]). Special circumstances were found based on the offender's age and the need for a substantial period of supervised parole to assist him in abstaining from illicit drugs and accessing rehabilitation support (at [54]). The indicative sentence for the commercial supply charge was four years with a non-parole period of two years and six months, and for the proceeds of crime charge, two years with a non-parole period of one year and six months (at [56]).
Orders Made
- Aggregate sentence of four years and six months imprisonment imposed.
- Non-parole period of three years, commencing 18 October 2023 and expiring 17 October 2026.
- Balance of sentence of one year and six months, commencing 18 October 2026 and expiring 17 April 2028.
- Special circumstances found; the offender is eligible for parole consideration at the expiration of the non-parole period.
- Form 1 matters (occupying drug premises and small quantity MDMA supply) taken into account.
- Consent orders made in relation to the forfeiture of the $24,950 seized from the premises.
Key Takeaways
- The District Court confirmed that committing offences while on parole remains an aggravating factor at sentencing, and the court treated the offender's parole status at the time of the October 2023 offending accordingly (at [25]).
- Where the statutory aggravating factor for supply in the presence of children under s 21A(2)(ea) is not technically met (because no supply occurred in the children's presence), a sentencing court may nonetheless treat the storage of drugs in accessible locations throughout a family home as increasing an offender's culpability (at [26]-[28]).
- Special circumstances justifying departure from the standard non-parole period ratio can be established by a combination of advanced age and the need for extended parole supervision to support drug rehabilitation, even where the offender has a poor record of compliance with prior conditional liberty (at [54]).
- A diagnosis of substance use disorder and an addiction originating in personal hardship did not, in this case, displace the need for a fulltime custodial sentence where the offender had repeatedly returned to commercial drug supply after each prior custodial term (at [29], [43]).
- Sentencing statistics provided by the Judicial Commission extend only to offenders aged "50 years plus," a limitation the court expressly noted as reducing the utility of those statistics in cases involving significantly older offenders (at [53]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 , s 193B(2).
- Crimes (Sentencing Procedure) Act 1999 , s 21A(2)(ea).
- Drug Misuse and Trafficking Act 1985 , ss 25(2), 36Y(1)(a).
Cases
- Nil.