R v Steve POLIOPOULOS [2012] NSWDC 205

District Court New South Wales

Medium Neutral Citation: R v Steve POLIOPOULOS [2012] NSWDC 205 Hearing dates: 07/09/2012 Decision date: 13 September 2012 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Term of imprisonment of 2 years with a non-parole period of 7 months. Catchwords: CRIME - Sentence - ongoing supply of a prohibited drug - early plea - prior good character - residential rehabilitation. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act (1985) Cases Cited: R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Smiroldo (2000) 112 A Crim R 47 Fayd'herbe v R [2007] NSWCCA 20 R v Giang [2005] NSWCCA 87 R v Hoon [2000] NSWCCA 137 R v Kairouz [2005] NSWCCA 247 R v Cheikh [2004] NSWCCA R v Gidaro [2005] NSWCCA 18 Category: Sentence Parties: Director of Public Prosecutions (NSW) Steve Poliopoulos Representation: Mr Raymond - Office of the Director of Public Prosecutions Mr Nicopoulos - JN Legal - Offender File Number(s): 2011/207007

SENTENCE 1HIS HONOUR: Mr Poliopoulos appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court and to which he continued his plea of guilty in this Court. The offence alleged against him is contrary to s 25A(1) Drug Misuse and Trafficking Act (1985) and carries a maximum penalty of twenty years imprisonment and/or 3,500 penalty units or both. There is no standard non-parole period. 2The particulars of the charge allege that he between 27 May 2011 and 24 June 2011 at Kingsgrove/Surry Hills in the State of New South Wales did on three or more separate occasions during a period of thirty consecutive days supply a prohibited drug other than cannabis, to wit crystallised methamphetamine, for financial or material reward. 3In relation to his plea of guilty, I am satisfied in all the circumstances, bearing in mind that part of the time since he has been in charge he has been in a full-time rehabilitation program, that his plea of guilty at the Local Court, was entered at the first reasonable opportunity. In accordance with the guideline judgment on the utilitarian benefit of pleas of guilty and the discounts to be provided in such circumstances where there is utilitarian benefit in the plea of guilty, that is the decision of Thomson and Houlton, I propose to give the prisoner the benefit of a discount of 25% upon the otherwise appropriate sentence. The Crown did not oppose that course. 4The facts of the matter are set out in a detailed statement of facts which I do not propose to recount. There are some important salient issues though, that arise from the facts. Firstly, the prisoner was involved in five supplies over a period between 27 May and 24 June 2011. The prisoner sold the crystallised methamphetamine to an undercover operative called 'Roberto'. I am not provided with the full details of the circumstances of their first meeting, however, in light of the expressions contained within the statement of facts as to the circumstances of their negotiations, I am not satisfied beyond reasonable doubt that the relevant supplies were "instigated" by the prisoner. I am not suggesting for one moment, nor did I in the course of the discussion of this matter with the learned Crown Prosecutor, that the prisoner was entrapped in any way. It is clear reading between the lines that the prisoner was approached because the undercover officer, for whatever reason, believed that he could assist the undercover officer in obtaining the relevant drugs that was sought, the relevant drugs being crystallised methamphetamine. 5The relevant quantities that were supplied over the period of time were firstly 3.27 grams of crystallised methamphetamine for the sum of $1,500; that was found to have a purity of 81.5%, on 7 June 2011 the prisoner agreed to provide two eight balls, that is 7 grams of methamphetamine, for $3,000, the facts set out the various transactions or discussions that occurred before the crystallised methamphetamine was provided and it ultimately weighed 7.3 grams and had a purity of 58%. The third supply occurred on or about 15 June, although discussion started on 14 June. This involved the purchase by "Roberto" of an eight ball or 3.5 grams approximately for $1,500. It in fact weighed 3.7 grams and had a purity of 78%. The fourth supply on or about 16 and 17 June 2011 involved the purchase of three eight balls, approximately 10.5 grams which had a purity of 56%. The final supply which culminated in the arrest of the offender on 24 June, which involved negotiations over a two or three day period, was concerned with what was sought as "one ounce" but in fact ultimately weighed 28 grams of methamphetamine for the sum of $10,500. The methamphetamine obtained from the prisoner, the subject of that part of the charge, was the largest quantity that the prisoner sold and it is clear the way operation unfolded that the prisoner, although there were varying amounts in the early parts, was being asked to provide more and more as requested. He was under no threat and he did so quite voluntarily. 6However, there are a couple of other features in the facts that need to be pointed out in assessing the culpability of the prisoner and his role in this affair. Firstly it is quite clear from the facts, and this was not disputed by the Crown, the prisoner himself did not at any relevant time have possession of the quantities of methamphetamine or crystallised methamphetamine that were sought. Clearly the prisoner had to go to others to obtain the drugs as he did not have them on them and there is no doubt that he was a conduit between the undercover officer and those that had direct access to the drugs. I am satisfied too that the prisoner was not to receive the bulk of the "profit" from the transaction, and I accept the evidence he gave as to the quantities of money that he expected to receive. I bear in mind, as part of a factual matrix in this matter, the prisoner himself was very heavily dependent upon methamphetamine or crystallised methamphetamine, was a regular user, had no employment at this time, having been in quite regular employment for most of his adult life in quite responsible positions, and clearly, in part, was involved in these transactions for the purposes of either obtaining methamphetamine or obtaining money for the purchase of methamphetamine. 7That being said, it is clear that this was a commercial operation but the prisoner's role in it needs to be clearly understood. The total quantity of methamphetamine seized by the police was 53.72 grams. The sums of money the prisoner obtained, from my calculations, total $21,500 over the relevant period of time. On the prisoner's evidence he would have expected to receive, as I understood his evidence, a little over $3,000 for his role. As I said, part of that would go towards the purchase of methamphetamine for himself. I am very mindful of the fact that the quantities of methamphetamine that were obtained had a very high level of purity. 8In fact, in my experience such as it is as twelve years as a judge sentencing many manufacturers of methamphetamine, suppliers of methamphetamine and users of methamphetamine, and having seen hundreds of analyst certificates in relation to various quantities of methamphetamine and crystallised methamphetamine that have been discovered by the authorities, the purity of some of the quantities that were supplied, particularly that in the order of the late 70s to 81% is the highest purity as one is likely to find. Clearly the methamphetamine was sold in the sense that is was provided by those who gave it to the prisoner on the understanding that the methamphetamine could be significantly cut, that is reduced in purity to in effect expand the quantity of methamphetamine that could be on sold. I am not satisfied, however, on the evidence that the prisoner would have known of the high quality of the methamphetamine he was provided. That having been said, if he tasted it or sampled it, as I would expect he may, he would have appreciated that it was quite strong compared to what is normally obtained in what might be described as street sales. 9In that regard I think it was agreed at the bar table in the discussions we had that one would expect to find a range of purity for street sales somewhere between as low as 1% and up to 10 or 12%. Of course every supply situation can reap different results in relation to purity, but again I go back to the fact that some of the quantities that were obtained were in the 70 to 80% range of purity which is extremely high. Even 56% purity is very high indeed. 10There are two co-accused who are yet to be dealt with by the courts. Ms Lisa Phillips apparently is on trial before Judge Williams. She was one of the people that the prisoner contacted for the purposes of obtaining the methylamphetamine sought by Roberto. The other is a man called Peter Lazaris who had a connection with a Thai brothel in the Surry Hills area. As I understand the evidence, and I cannot make any finding to the contrary, the prisoner's connection with these people was as a result of the prisoner's own dependency on methylamphetamine, not because of any longstanding personal relationship he had with them. 11The prisoner was born on 26 May 1963. He has no prior criminal convictions. That is to be explained having regard to some earlier remarks that I made by the fact that the prisoner comes from a Greek Australian family where industry and success are inherent in the aspirations of both the parents and the children. The prisoner's brothers apparently, in their own way, have been successful in their enterprises. 12The prisoner obtained his Higher School Certificate and spent a couple of years at University. He then embarked on a career at Qantas where he obtained a very senior management position over a twenty-three year period and moved on to other employment that he gave detailed evidence of before me. This included employment in Bangkok as a consultant in relation to the construction of the international airport that was recently completed there in past years. 13Apparently the prisoner went to Thailand after a break-up of his first marriage. There he met his current partner who continues to support him. He returned to Australia, as I understood the chronology, around about 2007 and held two other positions, including one position that he had held for almost two years before he was retrenched just before Christmas 2010. I accept his evidence that when he was retrenched, given the seniority of his management position, the timing of the retrenchment and other matters he found great difficulty finding commensurate employment to meet his considerable skills and qualifications. It is not without some significance that in the context of a longstanding drug abuse history, particularly intense over the previous six or seven years, that he found himself in the position immediately prior to the commission of these offences, unemployed for at least six months at that point with two young children to support, drug dependant, requiring up to $200 a day to obtain the methylamphetamine upon which he was dependant. 14The prisoner has two young children from his current relationship. They are aged, as I understood the evidence, seven and two years. From his first marriage, which broke up approximately eight or nine years ago, he has two children, aged twenty-two and nineteen years of age. 15He gave evidence of the acrimonious character of the break-up of his marriage. It would seem if he is not estranged from his children, he is certainly much estranged from his first wife. He, however, says in his evidence, and I accept his evidence in all material respects, that he is close to his children and is greatly aggrieved by the separation from them occasioned whilst he was in custody and greatly aggrieved by the embarrassment and shame that he has brought upon himself and his family by the circumstances in which he now finds himself. 16The prisoner's drug dependency is unusual. It is not often that one sees a case of a person with significant and onerous employment responsibilities indulging in drug usage. I accept the evidence of the prisoner in essence that the breakdown of his marriage contributed to his initial involvement with prohibited drugs, particularly amphetamine type drugs and I accept in the context of my knowledge of the use of these drugs that these particular drugs may well have in the initial stages provided him with some fortitude to manage all the different stresses and responsibilities that he had with family, work and the like. 17But there is a deeper background to this, both emerging from his evidence and in the various reports tendered by his counsel. The prisoner has suffered from various forms of, what is described in one report as a, nonmelancholic depression since a very young age. This has been subverted to some extent by his family situation, his unwillingness to address this condition, the exigencies of married life and work and the like, but it seems to stand in the background of the matter and provides an explanation for why he may have been susceptible to the attraction of the use of prohibited drugs in the manner in which I have described. 18The prisoner took the break-up of his marriage very badly, but he was still able to maintain his employment. He tried to forget some of the unsavoury aspects of the break-up, the separation from his children and the like that was occasioned by it. In fact, as I would understand it, although it was not expressly stated, his travels to Thailand where he worked for eighteen months to two years may well have been an attempt to distance himself from that unpleasantness. He did make regular trips back to Australia, I accept, to see his children, but no doubt he was under considerable pressure. Being in Thailand, of course, notwithstanding its very severe penalties for drug usage, did not stop him using prohibited drug. The use of prohibited drugs and disruptions to his employment, new responsibilities in relation to children that came with the second relationship placed enormous financial pressure upon him and really one can see in the context of his evidence how he very much spiralled out of control. 19I accept that on his arrest it was a very sobering experience. He had never been in custody before, never been arrested before and as I will take into account in the manner I foreshadowed with my introductory remarks, he was in custody from the date of his arrest on 24 June until 17 October 2011 when he was granted bail by a judge of the Supreme Court. 20The purpose of granting him bail, although I have not seen the judgment, would appear to be to enable him to undertake some residential programs. He has honoured those bail conditions in a range of ways. His time in full-time custody was 116 days which I am prepared to calculate in the context of other allowances made for the residential programs as approximately four months. 21Whilst in custody he had some quite unpleasant experiences. He suffers from sleep apnoea. It would seem that sleeping in a cell with another prisoner with a severe snoring problem made him a bit of a nuisance and made his life there quite unpleasant. Furthermore, a mature man of his background finding himself in prison would find that a very startling and intimidatory experience. 22In any event when released to bail he went into the Salvation Army Bridge Program and I have various certificates from that program that show he completed various stages. He was within that program for over four months but unfortunately on 23 January 2012 or thereabouts he had to be admitted to Prince of Wales Hospital with kidney problems, particularly kidney stones and renal colic. He had been under severe pressure with quite excruciating pain and his admission to hospital and his continuing treatment, including the need to use morphine related painkillers, meant that he could not be readmitted back into the Bridge Program. This is no criticism of him. I accept from the material that he has tendered from the Salvation Army, and a later reference from a Salvation Army Major, that he is regarded as a person in good stead with the Salvation Army as having done all that he could do when the opportunity arose. 23He was discharged from hospital. I have the medical notes from the hospital showing the range of treatments that he had and immediately setting about pursuing avenues to aid his rehabilitation. The prisoner in his evidence before me demonstrated that he had a full understanding of the fact that as a drug addicted person and a drug dependant person he still even now is very much at risk and that his rehabilitation is an ongoing process to which he must apply a great deal of energy. 24Amongst the steps that he has taken since being released from hospital are, firstly, to go to the Black Dog Institute at Prince of Wales Hospital to undertake assessment. I have not only a report from a psychiatrist associated with that institute but I have the results of a Mood Assessment Program report otherwise known as MAP which provides a wide ranging survey of various symptoms leading to the conclusion that the prisoner has in the past and in the present suffered from a severe "non-melancholic depression". The prisoner has been prescribed various antidepressants and other medications to assist him and has been counselled to pursue some therapies, particularly with the aid of a psychologist. 25The report from Dr Barnes, associated with the Institute, after setting out various history and stressors in his life and other related matters, stated that the prisoner presented with symptoms consistent with a "non-melancholic depressive episode" in the context of overwhelming stresses due to recently being charged with drug offences. She noted that he had a significant amount of respect within the community and financial stability in the past, but an uncertain future would perpetuate his symptoms. His addiction to methylamphetamine appeared to be in remission but his condition has been exacerbated by the abuse of "ice". 26The prisoner rather reluctantly disclosed a suicide attempt about a month before the assessment by the doctor which occurred in June 2012. She indicated the prisoner should be referred to his local community health team for review and assistance. She was of the view that his depression was one exacerbated by recent stresses. She also said that he would need regular and ongoing review by mental health teams. 27Since that report the prisoner has attended upon Muhamad Ziedni, a registered psychologist, in Marrickville, who has provided a detailed report, firstly stating that the prisoner has been in regular contact with the psychologist for psychological treatment and counselling up until the present time. The psychologist noted that the MAP and confirmed the diagnosis of a Unipolar Depression with an early onset of thirteen years of age. 28The prisoner had good understanding of his condition and had endeavoured to address his condition with professional assistance, never having missed any treatment sessions involving a psychologist. The psychologist noted the background of the prisoner as a hard worker, a sociable man, self-confident, over-achieving person in many respects, but he also noted in the report the years of family pressures, work life demands and the like and the relationship of drug abuse, particularly in recent years to those circumstances. 29The psychologist noted the recent marked deterioration in the prisoner, particularly in light of his arrest and his incarceration. He believes the prisoner would be a good candidate for rehabilitation and that his treatment should focus on a number of matters set out in the report. 30The prisoner has also attended upon the SMART Program and has also undertaken in the Rockdale/Hurstville area attendances upon a relapse prevention group and has had a regular, as I understood it, twice a week attendances upon Narcotics Anonymous. It is clear the prisoner for many years will be required to attend upon such organisations. 31As I said, all these matters were the subject of evidence by the prisoner in considerable detail. I accept both the tenor and the detail of his evidence, much of it of course supported by the inquiries from the Probation and Parole Service and the independent reporting of people from the Salvation Army and medical professionals. 32The Probation and Parole Service notes that the prisoner now appears to fully realise the extent of his drug use and the effect of this upon himself and his family in the wider community. The Probation and Parole Service in a very thorough report stated: "He appears committed at this stage to his personal rehabilitation and expresses a willingness to redeem himself, especially to his current partner and family members by showing that he once again can provide for his family." 33The spirit of that is supported in the medical evidence and the assessments of the psychologist as to his prospects. 34Of course sentencing an offender for an offence of ongoing supply under s 25A Drug Misuse and Trafficking Act requires consideration of a number of principles well known and longstanding in the decisions from the Court of Criminal Appeal. Amongst the cases that I have taken into account in this regard are R v Smiroldo (2000) 112 A Crim R 47 at [14] in the judgment of then Justice Hulme, other cases such as Fayd'herbe v R [2007] NSWCCA 20, R v Giang [2005] NSWCCA 87 at [18]-[19] and R v Hoon [2000] NSWCCA 137 at [16], as well as other judgments, including Kairouz [2005] NSWCCA 247 where the then Chief Judge at Common Law, Justice Wood, gave judgment in a case involving a far more serious situation of ongoing supply. 35Be that as it may, the authorities make it clear that a person charged under this section cannot rely upon the argument that the act of supply was an isolated event. Significant sentences are to be applied and only in exceptional circumstances will a non-custodial sentence be imposed here. Clearly notwithstanding s 5 "Sentencing Procedure" Act there must be a custodial sentence. 36In any event it is the only practical approach, given past time in custody in gaol, and as I calculate it, almost six months of residential rehabilitation, including the period of time in the Salvation Army establishment and also with the Watermark organisation in April/May of this year. 37The quantity of drugs is an ingredient of the charge. The section is directed to repetition, system and organisation. That is the business operation of supplying prohibited drugs. Thus the role of the prisoner, the quantity of the drugs, the manner in which the prisoner was able to supply drugs and the like are important matters to take into account. 38In some cases, even if the quantities be small, it may not mean that the criminality is reduced accordingly. In Kairouz Justice Woods spoke of an organisation that was very active and "highly organised", referring to it as a "syndicate" where the appellants were "principals from the outset". Those features do not apply here. I note the judgment of Justice Giles in R v Cheikh [2004] NSWCCA, and the analysis of sentencing patterns up until that time. But Justice Giles has, with other judges including Justice Bell in R v Gidaro [2005] NSWCCA 18, doubted that there is necessarily a general sentencing pattern. Apart from the general proposition that "lesser criminality brings a lesser sentence", and "greater criminality brings a greater sentence", Justice Giles pointed out that a pattern was at that point difficult to discern as there were many sentencing considerations in addition to the level of criminality. 39Of course, the maximum penalty and the objective seriousness of the offending is the starting point. In this particular matter I have already pointed to the features of the case arising from the facts that might identify the criminality of the prisoner as such as being less than would have otherwise been the case had he instigated the supplies and had been the person capable of immediate access to the drugs in question. In one instance, I note the prisoner took almost three days to get access to the relevant drugs. The quantity of course is not insubstantial, 53 grams approximately, but of course in this Court we can deal with cases involving hundreds of kilograms through to amounts only marginally above the indictable trafficable quantities. 40I have taken into account all that has been put in the submissions. It has been urged to me that I should give the prisoner mercy. It is urged on behalf of the prisoner that the aggravating factors in the case may be seen by the pleading itself and the maximum penalty that it attracts, but there are, in the context of the features of the case, many mitigating factors that could be taken into account. Counsel for the accused pointed to the positive steps the prisoner has taken to effect his rehabilitation, which I accept, and the fact that the prisoner has 'honoured' the trust put in him by the Supreme Court Judge who granted him bail. It must be fairly said that the prisoner was very fortunate to be granted bail given the seriousness of the allegations against him. 41I agree with the submission that I should give full credit to the time in fulltime custody, and I am providing the prisoner with a benefit of 50% of the time in residential custody as equivalent to fulltime custody. With regard to mitigating factors that arise under s 21A(3) Crimes (Sentencing Procedure) Act, I accept that he has good prospects of rehabilitation, that he has no prior criminal convictions, that he has expressed contrition in the way that the subsection contemplates; his plea of guilty of course is a mitigating factor but for which he receives a discount for the utilitarian benefit of the plea. 42I accept the prisoner is not part of any organised crime situation. It could be said that there is some degree of planning in the matter, but in the scheme of things it is the planning that is inherent in the commission of an offence of this type. Of course, as I pointed out, it was the prisoner approached by the undercover officer on at least a number of the five occasions, and as I have pointed out, the prisoner was responding to the requests made of him rather than particularising at an early stage what he could supply. 43With regard to the issue of financial reward, that is clearly an element of the offence. The Crown in its submissions accepted much of what had been put very skilfully on behalf of Mr Poliopoulos, but noted of course that in sentencing for these crimes there was a need to have proper regard to the purposes of sentencing, which I do, particularly the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act. Clearly there will be a requirement to have regard to general and personal deterrence and denunciation, making the prisoner accountable. Promoting his rehabilitation as well is a matter that one should not lose sight of, particularly a mature man close to fifty that has provided so much to the community without previously offending. It is a very unusual situation, I must say, to see a person involved in this character of drug supply with this particular background. It highlights to my mind the potential of the prisoner, and also the confidence one can have in the sincerity of the prisoner's attempts to pursue rehabilitation. 44Ultimately, I concluded that the appropriate sentence in this matter, all matters taken into account, should be a sentence of two years and eight months before the granting of a discount for the utilitarian benefit of the plea of guilty. I have determined that there are special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. The order that I contemplated at the outset will involve supervision for a period of one year five months. This of course might be thought of in one way as disproportionate to the overall head sentence, but this is a prisoner with a series of very significant issues to address, that to my mind will be better addressed for the benefit of himself and the community under parole supervision, rather than in custody, if he is prepared to take up the opportunity that I offer. He will need intensive supervision by the Probation and Parole Service to follow through on medical treatment for his depressive condition, and to obtain drug counselling and treatment if need be in the future. In my view one year five months is the bare minimum period of time that such supervision could be effective. 45Ultimately, given what I have calculated to be approximately seven months of pre-sentence custody, including as I said a residential treatment, I have determined that the prisoner having appeared off bail that I should make an order that would permit him to be released to parole today. Thus, hopefully, having taken all matters into account and certainly having taken into account all the submissions that have been made, although I have no transcript of the proceedings last Friday, I make the following orders. 46In relation to the matter to which you pleaded guilty, I sentence you to a term of imprisonment of seven months by way of non-parole period to commence on 14 February 2012 and to expire today on 13 September 2012. 47I direct that you be released to parole today and be subject to the supervision of the parole authority, on such conditions as fixed by the parole authority, but including conditions that require you to obey reasonable directions of the Parole Service in relation to medical treatment and drug rehabilitation and counselling programs. 48The balance of the sentence will be therefore one year five months. The balance of the sentence will expire on 13 February 2014. 49I direct that any drugs seized be destroyed and any cash be forfeited to the Crown if required. I will sign any relevant order in due course in relation to that matter. 50HIS HONOUR: You'll have to go with the officers, you'll have to remain in the cells until this is organised, but I'd expect you'll be released to parole today, probably within a few hours, but you'll just have to be patient until the paperwork is done.