R v Ognenovski [2020] NSWDC 884

District Court New South Wales

Medium Neutral Citation: R v Ognenovski [2020] NSWDC 884 Hearing dates: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 7 years, 3 months with a non-parole period of 4 years, 3 months. Catchwords: CRIME – Supply prohibited drug > commercial quantity- rolled up quantity. SENTENCING — Relevant factors on sentence —early plea - role in criminal group - solid prospects for rehabilitation with strong family support Legislation Cited: Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Markarian v The Queen (2005) 228 CLR 357 Category: Sentence Parties: David Joseph Ognenovski (the offender) Director of Public Prosecutions Representation: Counsel: Mr C Smith SC (for the offender)

Solicitors: Morrisons Law (for the offender) Ms A Bird (for the Director of Public Prosecutions) File Number(s): 2019/00255775; 2019/00366380

SENTENCE – EX TEMpore revised 1. David Ognenovski was born in 1993. He was raised locally in Wollongong. He received solid support from his family. As a young man he had ambitions to pursue a professional football career; that ambition was thwarted by a number of injuries. 2. Despite his family support he did not apply himself to work, study or his apprenticeships; in the way I suspect his parents expected him to. He showed a lack of motivation. He formed a poor relationship. There was his general use of the drug cannabis. And, it would appear in his 20s he took up the use of the drug cocaine. Although not supported by evidence on oath he told his psychologist that he became indebted to his cocaine supplier. The notion of selling that drug appealed to him as it would enable him to meet his debts, and to meet his own personal needs, both for using the drug recreationally and for an income. 3. His psychologist says that he has a number of negative personality traits, including narcissism and insensitivity to the needs and feelings of others. These, together with, anxiety and instability, made him vulnerable to the uptake of drugs. His lack of empathy for others is evident in his embracing of the role of drug supplier; as evidenced in the agreed facts before the Court. 4. It is tragic that a person, who is fundamentally pro-social, with strong pro- social supports, now finds himself in custody and facing a further term of custody. He is blessed, in a sense, with the continuing support of his family and his new partner. And, it would appear from all the material before me, that having overcome the real anxiety and depression that comes from any sane person being incarcerated, he has resolved to turn his life around. He says he has learnt the lesson, the harsh lesson, that gaol and custody is meant to serve. 5. But he faces court for sentence today for two particularly serious offences. Each involves the supply of a commercial quantity of a drug. Each carries a maximum penalty of 20 years imprisonment. And, for an offence that falls within the middle of the range, taking into account only objective features, Parliament has said there is a standard non-parole period - a standard minimum period in custody - of ten years. 6. That maximum and that standard non‑parole period are one of many guides to the exercise of my sentencing discretion. They do not determine the sentence that I must impose, but content has to be given to the standard non‑parole period and proper recognition must be given to Parliament's setting the maximum penalty. I do not make proportional deductions from either and I have a considerable discretion consistent with the obligations on a sentencing judge. 7. One of the reasons why we have such maximums and high standard minimums is that the community has to understand that anyone who is tempted to engage in the supply of drugs, at any level, but particularly at the commercial level, should think twice; because if they are caught, and in many cases they will be caught, they will go to gaol for a substantial period. They should, if tempted to act as Ognenovski was tempted to act, respond with a very firm, "No, it's simply not worth it." 8. Ognenovski was arrested on 16 August 2019 after a considerable and complex police operation. The matter has taken some time to get to Court. The parties have agreed upon the facts on which he is to be sentenced. Those facts are before me. 9. There was a police operation directed at two criminal groups of which this offender was a member. Drug supply groups rarely operate with a corporate plan or corporate organisational chart. Loose and fluid arrangements were made between groups with which this offender was associated. One group, who are described as the principal suppliers, are the Westman brothers who are presently before the Court awaiting sentence. The others group was two other men who lived in the local community - Walton and Owen. Their matters are also before the Court for sentence. Ognenovski worked with both Walton and Owen and the Westmans in various capacities. 10. The first supply prohibited drug matter relates to 637 grams of cocaine. The criminal group, with which he was then associated, was directed by the Westmans. Twelve transactions are set out in the agreed facts. The accumulated quantity of the drug was accepted by the defence as an appropriate way of properly characterising what was done by Ognenovski. To roll up quantities is entirely appropriate: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217. It is axiomatic that rolled-up quantities involve a series of criminal acts and care needs to be taken not to double count matters set out in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, 21A(2)(m) in particular. 11. I am also asked when I deal with him to take into account a number of matters on a Form 1. One of them involves the possession of a small quantity of cannabis that would not ordinarily attract a custodial sentence. The others are deal with the proceeds of crime and participate in a criminal group. While separate crimes in themselves, I am not sentencing him for those crimes. As I discussed with Counsel, I need to take care. When I come to assess the objective circumstances, formulate and impose the sentence for the supply of cocaine I must take into account the offender's role, the organisational aspects of his supply, the profits that he hoped to make and did make, the fact that this was a commercial operation which required funds to purchase fresh supplies and was intended to result in a cash profit as well as, I strongly suspect, drugs for his own use. In doing so I cannot double count the principles so far as Form 1 matters are concerned, that is; increasing the sentence to recognise the need for personal deterrence and retribution for the crime for sentence. I do not sentence for those separate matters but they are relevant to the overall sentence that I must impose, so care will be taken, not to double count such factors. 12. The point was well made by McHugh J in Markarian v The Queen (2005) 228 CLR 357. The Court's ultimate role is to synthesise all relevant features and determine the penalty for the offence for which the offender is to be convicted. 13. The second supply cocaine offence involves supplies on 12 occasions. On some occasions this offender remained distant from the ultimate suppliers and used others, Owen and Walton, to take the risks involved in the distribution of the drugs. On other occasions he himself was more closely connected with those who were purchasing the drugs. It is clear that Ognenovski embraced his role as a drug supplier and that he on occasions directed others and on occasions received directions from the Westmans. 14. The facts detail the counting of the money, the cutting and packaging of the drugs, his discussions of potential profits and costs, storage and other matters relating to the supply of cocaine. While labels are not necessarily helpful in such situations, it is clear that this offender adopted a proactive role in the business and that he had some control over his supply and sourcing of the drugs. He was sharing in the profits and he had a hand in the management of the operation. He attempted on many occasions to distance himself from day‑to‑day supplies. 15. While I am prepared to accept that he was a drug user, his motivation was to obtain money. There is no evidence that he was living a particularly lavish lifestyle. He was still at home and his parents were, as is obvious from all the material before me, unaware of this activity by their son. Although a drug user, he remained clear thinking enough to carry on his trade in a rational, clandestine and efficient manner and he appears to relish the fact that he was making profits from spreading drugs into our community. 16. In gaol he has belatedly come to understand the harm that drug supply does to individuals. That is heartening, but it is something I am sure he would have been aware of at the time. I am prepared to accept that his moral compass instilled in him by his parents was askew because of his own drug use. Further, as his psychologist indicates, he had some personality disorders that made him more vulnerable. 17. Those personality disorders do not in any way excuse what he did. Drug use can never be regarded as an excuse. It does, however, help me to formulate a way of structuring this sentence because it would appear that he remains determined to put that in the past and that lifestyle behind him. 18. He is also for sentence today for supplying the prohibited drug methylenedioxymethylamphetamine (MDMA). The agreed facts indicate that working with Walton and Owen, efforts were made to protect their supplies from discovery. A number of discussions were had as to the storage of the drugs. The quantity of MDMA found by police exceeded 500 grams. Quantity is not a sole determinant of objective seriousness and it is accepted that this offender was only aware that more than 125 grams of MDMA was present. A commercial quantity of the drug is 125 grams. 19. DNA evidence supports the conclusion that he handled a bag which contained a bit over 110 grams of rock type MDMA. Listening devices reveal him discussing with Walton and Owen using a jet ski to store "all of our drugs". It is clear that he was working, and the agreed facts and Form 1 matters indicate that he was working, with Walton and Owen as part of a criminal group. Working together to supply drugs in the local community. It is also clear that the group kept their drugs in the Jet Ski. 20. Quantity is only one matter going to objective seriousness. I proceed on the basis of the agreed facts that he was aware of the rock and aware that some other MDMA, as depicted in the photographs, exhibit C, would be stored along with the rock. 21. I do not need to determine anything more, other than that he was prepared with others to possess a commercial quantity of the drug; with the ultimate aim of distributing that drug into our community for profit. It is his role of working with the others that is more important than the actual quantity. He was not concerned about the specific quantity, he was concerned (with the others) about possessing that drug for the purpose of supply for profit. 22. When he was arrested he was found with nearly $40,000 in his possession. How much of that he was going to take himself, and how much was to purchase other drugs, is not for me to determine. That sum was indicative of the sort of sums that he was dealing with at the time. It, again, goes to my assessment of the objective seriousness of both matters and my finding that his actions were for greed and profit, not just to obtain drugs for his own use. That finding has more resonance with the drug MDMA as there is no indication that he was in any way addicted or a regular user of that drug, although I presume he probably did use his product at some stage. 23. It is sad that he was able to deceive his parents because the money and the cannabis were kept at the family home. On the other hand, he distanced his family and his family home from his supply activities. 24. I have had considerable benefit of comprehensive written submissions from Mr Smith of Senior Counsel and Ms Bird, who appears for the Director of Public Prosecutions. The submissions have informed my decision-making process with a couple of minor differences which we have discussed, differences and emphasis. 25. It is accepted that I should sentence on the basis, so far as the cocaine is concerned, that he is less culpable than the Westmans but more culpable than Owen and Walton. He was not simply an upline supplier to Owen and Walton he worked closely with them in the supply of drugs. 26. Similarly, he was not simply a subordinate of the Westmans rather he worked closely with them. He had his own sources of the drug. He sought to make a profit and he took a management role. He used safe places that were not directly connected with him. There is nothing sophisticated about what he did; to the contrary, the comprehensive police investigation indicates that once suspicions fell on him, the police using covert techniques were able to catch him, effectively red-handed. 27. I have already discussed his personal life. He entered his pleas of guilty in the Local Court. The pleas had significant utilitarian value. He expressed to his family and to his psychologist appropriate remorse. Although he gave no evidence today there is nothing before me to indicate that those comments were not genuinely made and that he has not genuinely resolved to change his life. 28. While his criminal record means he does not get the benefits often given to first offenders, there is nothing on his record like these matters. He is serving his first sentence in a gaol. He is working. He is studying. He is applying himself. There are no records of misconduct. In custody he, understandably, suffered depression and anxiety, to which he was already vulnerable. He has fitted into gaol routine. He has employment available on his release. 29. He will require psychological help to maintain his abstinence. He will require assistance and monitoring when adjusting to normal community life after he serves the minimum time that the purposes of sentencing require he serve as punishment for his crimes. He is still a young man; he still has a lot of life ahead of him. 30. He has served a portion of his sentence subject to considerable COVID-19 restrictions, which are thankfully now being moderated. I take this harshness of custody into account. It is abundantly clear that, if he takes the opportunities given to him via finding of special circumstances, requiring a significant portion of the sentence to be served in the community, he will meet those obligations. 31. Sentences are not just about offenders. As I said at the beginning, recognition has to be had for the seriousness with which Parliament on behalf of the community views such offences. That is indicated in the maximum penalties and by the existence of a standard non-parole period. There must be a substantial sentence for both matters. I will indicate those sentences. I will take into account the matters on the Form 1. 32. Each of the indicated sentences will be reduced by 25% to reflect the utilitarian value of the plea of guilty. The acceptance of responsibility, and the plea itself, also have other values when it comes to my overall synthesis of what is an appropriate sentence for both matters. 33. He was involved with two criminal groups. There are two different types of drug for sentence. The most serious offence would appear to be, given the time over which it occurred and the number of transactions, the cocaine matter. But there must be some independent punishment for the MDMA matter as well. The appropriate sentences, that must be indicated for each, requires some accumulation. In the process of accumulation, I have sought not to erode in any way the benefits given for the plea of guilty. 34. Although a substantial finding of special circumstances has been made, the minimum term in custody must, as I have said, reflect the purposes of sentencing, including the objective seriousness of what he did. Although I am reasonably satisfied that Ognenovski will not reoffend, the measure of punishment demanded requires that he spend additional time in custody.