R v Kovacev [2020] NSWDC 903

District Court New South Wales

Medium Neutral Citation: R v Kovacev [2020] NSWDC 903 Hearing dates: 12 March 2020 Date of orders: 12 March 2020 Decision date: 12 March 2020 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate term of imprisonment of 18 months with a non-parole period of 10 months: at [15]. Catchwords: SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — General principles — Multiple offences — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances Legislation Cited: Drug Misuse and Trafficking Act 1985 Cases Cited: Barbieri v R [2016] NSWCCA 295 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Michael Kovacev (Offender) Representation: Mr S Flint (Solicitor for the Office of the Director of Public Prosecutions)

Ms S Climo (Counsel for the Offender) File Number(s): 2019/133372

Judgment 1. Michael Kovacev, who is now 58 years of age, pleads guilty to two offences 1. Sequence 1 - Supply 0.59 grams of heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment with no standard non-parole period. 2. Sequence 6 - Supply prohibited drugs on an ongoing basis involving a total of 1.07 grams of heroin over six occasions contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period. 1. The offender pleaded guilty at an early stage justifying a 25% discount for the utilitarian value of the pleas. 2. There is no dispute between the very helpful written submissions prepared by the Crown and Ms Climo on behalf of the offender as to the objective seriousness of the offending and as to the other matters relevant to the purposes of sentencing. 3. n short, the facts show that in December 2018 a police investigation relating to the ongoing supply of prohibited drugs in the Surry Hills and Sydney CBD commenced. On 12 December the offender was seen providing .59 grams of heroin to a female, which is the subject of the first sequence. The ongoing supply count relate to a number of supplies between 17 January 2019 and 31 January 2019, in which the offender supplied various customers with small amounts of heroin making the total to which I have referred. 4. On his arrest on 29 April 2019 he candidly admitted being involved in the supply of heroin. He gave police the details as to how he conducted the operation. He said he was using more than he was earning and he would make $10 for each small deal of heroin and $20 for a big deal. He said he was a heroin addict and he knows what it is like to hang out, and he used his modest profits to purchase heroin and contribute towards paying back a debt of over $4000. 5. He has a record which is conveniently summarised in the report of Thea Gumbert, psychologist, as resulting in fines, bonds and suspended terms of imprisonment. He first came into contact with the criminal law in 2003 on drug possession and goods in custody, and accessory after the fact charges. In 2005 he was convicted of drug supply and goods in custody. Further possession charges in 2007, 2014, 2015. There was a drug supply in 2016 and a s 9 bond for common assault. 6. He has been in custody for these matters only since 29 April 2019 and has previously served odd days and weeks bail refused at various times between 2002 and 2016. 7. The co-offender was dealt with by the Local Court on slightly different charges arising out of much the same facts, and the co-offender was actually the supplier or the person further up the line of supply from this offender and he was given a Community Corrections Order for 12 months and fines. The co-offender was a young man with o record. There are obviously some parity considerations to take into account. 8. Mr Kovacev has a very sad background, described in the report of Thea Gumbert. He came to Australia from Yugoslavia in 1970 when he was nine. He had a normal upbringing. He had a longstanding relationship with a woman who was murdered in 1991. Following her death he became severely depressed. He had regular employment for many years after leaving school, but he was king hit in the street in 2004 and he has been on a disability support pension since then. His memory and concentration was significantly impacted by the head injury and he has been described Prozac for depression since 2014, that prescription having been proffered by the Homeless Health Service. Thea Gumbert described him as presenting with active symptoms of depression. 9. He began using heroin in the 1980s, dabbled a bit in methadone replacement in 2004 and has been on it continuously since 2012. He has abstained while in custody despite the opportunity to purchase drugs. He has been working well in custody. 10. His mental health obviously declined significantly following his partner's death. He has expressed regret and remorse for the impact of the offending on the community and he readily acknowledged his offending when first spoken to by Police. 11. The first supply sequence involved a small amount of heroin, and it is clearly at the lower end of the scale of objective seriousness. As to the ongoing supply offence the repetition and magnitude of the operation was taken into account but the overall weight was very small. The supply was in the context of a user/dealer. There was no substantial financial reward. He was an on seller of drugs provided by a principal. The ongoing supply was of short duration and is also at the bottom end of the scale of objective seriousness. 12. He has reasonable prospects of rehabilitation. The offender has recognised his need for continuing treatment for his mental health and drug addiction issues. He has demonstrated remorse and pleaded guilty. His mental health difficulties as referred to by Simpson JA in Barbieri v R [2016] NSWCCA 295 are matters that should be taken into account. As Thea Gumbert opined, there was a nexus between the diagnosis of major depressive disorder and his offending behaviour so specific deterrence is of less significance in the sentencing process. His drug addiction while not a mitigating factor is a subjective matter to be taken into account. 13. In the circumstances, the Crown's submission that full-time custody is required is an appropriate one, but in my view the time that has been served to date is an adequate period of full-time custody. 14. The orders that I make are: 1. The offender is convicted of each offence. 2. The indicative sentence are 1. Sequence 1- 6 months; 2. Sequence 6 – 15 months; 1. I impose an aggregate sentence of imprisonment of 18 months commencing on 29 April 2019. 2. I impose a non-parole period of 10 months expiring on 28 February 2020. 3. I find special circumstances. 4. Sequences 2, 3, 4, 5, 7 are withdrawn. Note – These extempore remarks were revised without access to the court file.