R v SPIROULIAS [2013] NSWDC 292

District Court New South Wales

Medium Neutral Citation: R v SPIROULIAS [2013] NSWDC 292 Hearing dates: 23/08/2013, 05/11/2013 Decision date: 05 November 2013 Before: S Norrish QC Decision: Form 1 matters taken into account. Seq1: Sentenced to a term of imprisonment of 4 years and 3 months, non parole period being 2 years and 3 months. Seq2: Sentenced to a term of imprisonment of 3 years and 9 months. Orders made pursuant to Confiscation of Proceeds of Crime Act 1989. Catchwords: CRIMINAL - Sentence, on going supply of prohibited drugs, plea of guilty, special circumstances. Legislation Cited: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Hunter [2010] NSCCA 330 Gore v R; R v Hunter [2010 NSWCCA 330 Markarian v The Queen [2005] HCA 25 R v Smiroldo [2000] NSWCCA 120 Baxter v R [2007] NSWCCA 237 Thomson and Houlton [2009] NSWCCA 309, 49 NSWLR 383 R v Gip [2006] NSWCCA 115 Yardley v Betts (1979) 22 SASR 108 R v Blackman and Walters [2001] NSWCCA 121 Pearce v R (1998) 194 CLR 610 Category: Sentence Parties: Crown Andrew Spiroulias Representation: Director of Public Prosecutions J P Gould Solicitor File Number(s): 2012/00043795

Sentence 1HIS HONOUR: Andrew Spiroulias appears today for sentence in relation to two offences contrary to s 25A(1) Drug Misuse and Trafficking Act 1985. The offences that he pleaded guilty to at the Local Court were, firstly, that he between the 22nd day of December 2011 and the 20th day of January 2012 at Neutral Bay in the State of New South Wales did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, to wit, heroin, for financial or material reward. That is Sequence 1. In sentencing the offender in relation to sequence 1, I am to take into account a number of matters on a Form 1 which I will refer to shortly. 2Sequence 2 is an offence, contrary to s 25A, alleging that the prisoner between the 21st day of January 2012 and the 9th day of February 2012, between Neutral Bay and Dee Why in the State of New South Wales, did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, to wit heroin, for financial or material reward. 3Each offence carries a maximum penalty of 20 years imprisonment and or a fine of 3,500 penalty units, there is no standard nonparole period for that offence. The matters on the Form 1 for which the offender has admitted his guilt and are to be taken into account in relation to the Sequence 1 matter are all offences arising out the circumstances of his arrest on 9 February 2012. They are offences of resisting police, possessing 0.15 grams of methylamphetamine a prohibited drug, dealing with suspected proceeds of crime in the sum $157.85 and having goods in his custody reasonably suspected of being stolen or unlawfully obtained, to wit, one diamond. The facts of those matters I will refer to in a moment. 4I have been provided with are described as 'Facts on the Sentence' of which the prisoner's counsel referred to as 'agreed facts'. They are not signed by the prisoner but they have not been disputed and the prisoner has not given any evidence to dispute the facts. The background of the offending with which I am concerned is that Manly Detectives in December 2011 set up a strike force to investigate the supply of prohibited drugs within the Manly and Northern Beaches Peninsula. It is clear that they quickly targeted the prisoner, hence the lawful interception of a number of telephone calls made by him which are very much the basis of the prosecution. In fact between 22 December 2011 and 9 February 2012 the prisoner's mobile phone services were targeted and hence the particulars in the charges represent the period of time over which the telephone interception occurred. 5During the relevant time the prisoner used four different mobile service and two of those mobile phones, or those SIM Cards, were in his possession at the time of his arrest. The particulars of the four telephone services are set out in the facts and I need not reiterate. The conversations that were lawfully captured, as the facts state, involve the prisoner discussing with other people, about the supply of heroin. 6It is accepted in the facts that the prisoner during this particular period of time had an addiction to cocaine and methylamphetamine, and in some conversations or in one particular conversation, the facts do not make it clear, the prisoner said that he was using too much cocaine and it was costing him money. He also complained of going on methylamphetamine benders which would cost him money because he could not answer his customers calls. The facts state that the prisoner indicated that he would not sell cocaine or methylamphetamine and would concentrate on his 'work', his work being the supply of heroin. 7The prisoner is said to have frequently caught public transport to Redfern, Sydney CBD and Cabramatta in order to source heroin and other drugs, and he often purchased drugs in what are described as halfball or ball quantities, that is, 1.75 grams and 3.5 gram quantities. 8The first ongoing supply offence which I have already outlined involved him and a female associate assisting him in the supply of customers, at least between 22 December and 28 December 2011. In this time he made up a number of packages of heroin in amounts of 0.05 grams, 0.1 gram, 0.2 grams in quantities of up to 0.4 grams. 9He was in constant communication with the associate and gave her the prepackaged heroin to sell to customers. He spoke to purchasers directly and then gave her directions about what sort of drugs the purchasers wanted to buy and where she should meet them to handover the packages. A number of code words were used between the prisoner and his associate in relation to, first of all, the description of different drugs and then, the quantities that were sold which I need not again reiterate here. 10Annexed to the statement of facts are the list of what are described as transactions conducted by the prisoner covered by the first charge. During this time he made a number of sales as is self-evident. On 23 December, for example, he made 28 sales to various purchasers. Quantities sold during the period range between 0.05 grams to 0.2 grams. He is not charged with any offences relating to the sale of cocaine. 11During this period the prisoner supplied an approximate total of 22.15 grams of heroin for approximately $20,500. At the end of December, during the course of the commission of the Sequence 1 offence, the prisoner and his associate had a disagreement and she stopped distributing drugs on his behalf. I am informed that she was to appear for arraignment at the Sydney District Court on 23 August 2013 which coincidentally was the date that Mr Spiroulias first appeared before me. I am given no particulars in relation to her and it is quite clear from the facts that she was working at his direction, albeit, that she was assisting him. 12The second offence in time, that is the Sequence 2 offence followed the same pattern. The prisoner used code words in telephone conversations with purchasers. If I may quote from para 14 of the facts, in one conversation the prisoner said, "If I get pinched again, I'm gone" and on 28 January 2012 the prisoner had a conversation where he said he did not like to supply drugs of poor quality and is quoted as saying, "I've been in this industry, mate, for a fucking very long time, mate, and I'm not stupid, you know what I mean." Again, an annexure is attached to the facts setting out the transactions conducted by the prisoner, this time without assistance, as was the case for part of the offending covered by Sequence 1. 13On 31 January 2012 he made 17 sales to various purchasers. Quantities of heroin sold during the period range between 0.05 grams and 0.04 grams. He is again not charged with any offences relating to the sale of cocaine. During this period the prisoner supplied an approximate total of 14.45 grams of heroin for approximately $14,000. 14On 1 February 2012 a purchaser was arrested by police as part of this operation to identify the drug. The purchaser was in possession of a bag containing heroin. 15On 8 February 2012 another purchaser was stopped by police in the Dee Why area and after purchasing a particular item from the prisoner the purchaser was found with two bags of "heroin" in his sock. He said to police that he paid $300 for it. On his phone there were text messages between he and the offender on one of the mobile phone numbers I have already set out. For the two month period covered by the charges, or slightly less than two months, the prisoner supplied a total of approximately 36.6 grams of heroin for an amount of $34,500. 16Paragraph 19 of the 'facts' states; "The offender himself in telephone intercepts stated that he made $2,000 a day from the sale of prohibited drugs. He also stated that he brought a $15,000 watch and expensive sunglasses and he was able to pay $1,600 a week rent when doing well." 17The Form 1 offences arise out of his arrest at 4.30pm on 9 February. The prisoner got into a gold Nissan sedan on York Street, Sydney, sat in the front passenger seat with the male associate driving and there he purchased some methylamphetamine. He got out of the car and entered a hotel in Jamison Street, Sydney and walked towards the toilets. The police found the prisoner in the cubicle of the female toilets in the hotel and he was seated on the floor in his underpants and attempting to smoke methylamphetamine. Police announced themselves and attempted to enter to locked toilet cubicle, the prisoner placed both legs against the door to stop them entering. He then dropped a clear resealable bag and a rolled up $5 note into the toilet bowl and attempted to flush the toilet while kicking his feet at police. Three police officers were required to forcibly subdue him and remove him from the toilet cubicle, that's the offence of resisting police. 18The police located a clear resealable bag with clear crystals in the bag. The bag was water damaged and most of the contents dissolved. The prisoner admitted to being in the toilet to smoke the methylamphetamine and was about to smoke it when police entered. The contents of the small bag that could be recovered from the floor were analysed by the Division of Analytical Laboratories and found to contain 0.15 grams of methylamphetamine. 19The prisoner was also in possession of a clear stone wrapped in aluminium foil which "looked like a diamond." When questioned about this the prisoner said, "Found it on the street." He gave no explanation as to why he was in his underwear and he continued his lack of cooperation when he got to the police station when he exercised his right to silence and declined to be interviewed. 20The prisoner was born on 20 November 1975. He will thus turn 38 at the end of this month. He has a criminal history that goes back to 1994 and it must be said at the outset that his criminal history does not entitle him to any leniency, although, it must also be said, judging from the jurisdictions in which he has appeared and the sentences imposed, that the matters with which I am concerned now are the most serious offences for which he has been convicted. 21He first appeared at the Sutherland Local Court in 1994 and was convicted of common assault and offensive language for which he was fined. He then, in the same year, was convicted of malicious damage and offensive language. In 1995 he was convicted of driving in manner dangerous, resisting arrest, malicious damage, and also convicted of driving whilst licence cancelled in an earlier time in 1994. In 1996 he was convicted of offences relating to the possession of a prescribed restricted substances, possession of a prohibited drug, cultivating prohibited plants and possession of prescribed restricted substances which were offences taken into account on a Form 1 when he was dealt with in the District Court. He was dealt with in the District Court in 1997 for supplying a prohibited drug on a bench warrant and he was sentenced to three months imprisonment. I have no details of what drug was supplied directly from him. 22I note, although the criminal history is almost unintelligible, that he had a matter of supplying a prohibited drug, apparently taken into account on a Form 1 with the other matters I have identified. He was convicted in July 1997 for causing injury with intent to influence a witness and sentenced to a minimum term of nine months with an additional term of 15 months. Apparently there were other matters taken into account on a Form 1. He was convicted of driving offences in the early part of the century, including drive in a manner dangerous or a speed dangerous to the public. He was again convicted in 2004 of driving in a manner dangerous or a speed dangerous to the public. He was convicted of possessing prohibited drugs and possessing restricted substances in 2004 and having goods in his custody suspected of being stolen or unlawfully obtained in 2006 for which he was imprisoned. 23At the Manly Local Court he was sentenced on 13 May 2008 for being armed with intent to commit an indictable offence. He received a period of imprisonment of 20 months with a nonparole period of nine months and he was ordered to undertake residential drug rehabilitation as directed by the Probation and Parole Service. He had earlier, three months before, been convicted of making knowingly false or misleading statements and dealing with property suspected to be the proceeds of crime for which he was sentenced to six months imprisonment.At the Manly Local Court he was also convicted of common assault and sentenced to 12 months imprisonment. 24At Hornsby Local Court in April 2011 he was convicted of possessing a prohibited drug and supplying a prohibited drug for which he was respectively sentenced to six months imprisonment. He was also convicted of dealing with property suspected to be the proceeds of crime and sentenced to six months imprisonment. They are the fingerprinted matters. The nonfingerprinted matters include convictions for common assault in 2006 for which he received a s 9 bond, destroying or damaging property for which he received a s 9 bond. He was convicted in his absence of using a carriage service to threaten to kill another person or other persons, there were nine counts of that offence and he was ultimately sentenced at the Sutherland Local Court to two months imprisonment. 25It is about time that criminal histories were presented to Judges in intelligible fashion and in a chronological order to assist them to summarise the contents. 26The other evidence available to the Court comes from a range of sources. From the Crown I have the Probation and Parole Service report which I believe I requested given the prisoner had previously been on parole. This report deals with a summary of the prisoner's prior periods of supervision. In relation to a previous order for community service I note that it was extended on two occasions and ultimately it was revoked because of Mr Spiroulias's failure to complete the hours required and advise a change of address. 27When he was subjected to a s 9 bond the supervision was deemed to be poor as he did not report on a regular basis. He was under parole supervision in 2008 and 2009. He was described as "Difficult to work with." Urinalyses results do not indicate illegal drug use and he ultimately completed the order in a satisfactory manner. 28In the summary of the prisoner having regard to the file information and the interview with the prisoner, the assessment of the Probation and Parole Service officer was that his propensity to illicit drug addiction over a lengthy period of time appears to be the primary contributing factor to his "Criminogenic" behaviour. "He is fortunate to retain the support of his family who may be able to assist him" (the word 'is' is in the report, but it should be) "in assimilating back into the community. However, Mr Spiroulias will need to remain vigilant and focussed on addressing the issues that have continued to bring him before the Court if he is to reduce the risk of further adverse attention of the law." 29It is thought that he would benefit from referral to alcohol and drug assessment and counselling and rehabilitation program, referral for random urinalysis, some psychological evaluation and treatment, particularly targeting the area of "depression", monitoring his associations and referral of him to educational employment skills training. 30It is to be noted, of course, the prisoner is 38 years of age and has little in the way of achievement in the way of employment or training. The background of the prisoner, and I am relying now on the account given by the Probation and Parole Service, is that the prisoner started using drugs, he says, when he began working out in a gym and commenced using steroids, he moved to cocaine, amphetamine and has used heroin as well. He told the Probation and Parole Service that when he was arrested February 2012 he was quote "a mess". He had a tragedy in his life when he was aged twenty-five years. 31In about 2000 his fiancé of two years passed away as the result of an accident, as I understand it, falling from a building at Rockdale, at Rockdale Plaza. He does not have any children. He hopes to reside with his parents in Bexley, and I note his parents have been in Court supporting him during the course of the proceedings, although for some reason they were not called to give evidence. 32It is about time counsel appreciated that simply saying the parents are in Court is barely enough to assist the Judge. The Court might have been assisted by some evidence from the parents as to what assistance they can provide the prisoner given his performance over the last twenty years and his criminal conduct and his current circumstances, although I accept that his parents will support him. 33He left school during Year 9 to complete an apprenticeship in panel beating. He did not complete that apprenticeship and he has a number of different employments over the years, usually in short-term casual positions, particularly since his last release from custody. Securing employment, he said, was a priority when he returned to the community. I note that he has been employed in the Industries Complex at Bathurst Correctional Centre for some period of time with 'nil adverse' comments in relation to his work performance. 34He told the Probation and Parole Service he had been assessed as suitable for a particular Probation and Parole program. He is assessed through some form of actuarial assessment system as being of medium risk of reoffending which I think is selfevident from his past performance and identified needs include education, financial support, associations, drug and alcohol problems, emotional and personal issues, and as well as obviously attitude and "orientation." I have a drug and alcohol report from Junee Correctional Centre. The prisoner has obviously been moving around the system. 35The Offender Development Officer at Junee said that during interview the prisoner appeared to give honest answers and showed a willingness to change behaviours and establish a better lifestyle for himself, making better more informed choices. He appeared to the writer to be motivated and determined to succeed in his endeavours and it went without saying that the writer recommended that he take drug rehabilitation through residential or some other form and would benefit from the alcohol and other drugs program conducted within the prison. 36There is other information there consistent with the Probation and Parole Service report and I have two reports from two drug rehabilitation programs, one Odyssey House, the other the 'Bridge Program' at the Salvation Army, indicating the prisoner's suitability for admission to residential programs run by those organisations. 37Of course, the material within those letters may be considered in due course by the Parole Authority but one might have thought ultimately that it was more pertinent to considerations of potential release on bail which in this case were not realistic. 38The prisoner produced a report from Mr WatsonMunro. Much in the report does not tell me anything more than the prisoner could have told me from his witness box or his counsel could have told me from the bar table. It sets out some detail of background and social history, some history of his family and some employment history which I have taken into account. It notes his reaction to the death of his fiancé as I referred to earlier and the effect upon him of that but it must be fairly said that his performance in the community since that death reflects little in the way of an attempt by him to address some of the underlying issues that are referred to by the psychologist. 39The psychologist refers to his history of drug addiction or drug use. He claims that the prisoner is now detoxified, which may be so, but does not relieve the prisoner of the burden of having to address the risks that are awaiting when he is released to the outside world. 40The psychologist noted that in the interview the prisoner was "highly respectful" and "cooperative." He noted no evidence of psychiatric disturbance. To be frank there is no medical evidence whatsoever of any psychiatric or physiological condition perhaps beyond, apart from, 'drug dependence' which explain his offending on this occasion or on these occasions. 41Again, Mr WatsonMunro applied little in the way of psychometric testing. He did administer the Beck Depression Inventory which is a selfreporting questionnaire. But I would be more greatly assisted, as would other Judges, if psychologists would employ the skills that are available to them, particularly the psychometric and other psychological testing that they are qualified to undertake. 42The selfreporting of the prisoner shows symptoms of depression and anxiety. In the previous fortnight before testing one would expect this given the prisoner's current circumstances. 43Mr WatsonMunro states that the prisoner is "Suffering ongoing depression and anxiety reflected in feelings of expectations of punishment, low selfesteem, feelings of past failure, remorse, sleep disturbance, variation of mood and some cognitive intrusion referrable to concentration and decision-making." 44However, he notes a renewed sense of optimism, high levels of energy and drive and better orientation leading to insight and its galvanising effect on his desire to move forward with his life. 45He noted, on review, that the prisoner had denied amphetamine psychosis but conceded some paranoia and impaired judgment when using amphetamines, and notes his drugfree status since his arrest and would recommend him to be subject to rehabilitation, and recommended a particular rehabilitation centre in Wyong. However, again, the expectation that he would be released there in September 2013 was somewhat optimistic. I have had regard to Mr WatsonMunro's opinions and given them such weight as they deserve. I note his undertaking of a relapse prevention program in custody. 46I was provided by the Crown, I believe, with a number of statistics relating to the sentencing of offenders in relation to ongoing supply. I have made the comment in the course of submissions, I do not believe they are a complete record of the sentences that have been imposed in the higher Courts and I believe that is refected in one of the judgments that was given to me which provides a very survey of decisions of the Court of Criminal Appeal, particularly up until 2010 in relation to s 25A. That is the decision of Gore v R; R v Hunter [2010] NSWCCA 330. I do not believe the sentencing of Gore particularly, as Ms Hunter was more leniently dealt with, provides a comparative sentencing exercise to the matter with which I am concerned. 47I note he appealed against the severity of a sentence of seven years six months imprisonment with a nonparole period of five years seven months and twelve days in respect of an offence under s 25A taking into account eleven matters on a Form 1. 48The facts in relation to Mr Gore were for supplies over the relevant period involving a total of $700 and a quantity of 2.7 grams, and the Court of Criminal Appeal interfered with the sentence to reduce it substantially to a nonparole period of three years four months with a balance of 14 months taking into account the matters on the Form 1. 49What is useful in the judgment is, apart from of course, the very helpful survey by Justice Adams of general principles relating to the relevance of maximum penalties in sentencing, the requirement of intuitive synthesises laid down by Markarian and the particular authorities relating to the principles to be applied in relation to s 25A matters, is the survey of a number of judgments, again, of the Court of Criminal Appeal for offences of 'ongoing supply' either single counts or multiple counts. 50I appreciate, as was pointed out in the judgment of Gore, noting that Hunt CJ at CL in Morgan had said in 1993, that; "It is quite wrong to compare the sentence" at bar with other sentences simply on the basis that offenders may have similar characteristics or may have committed similar crimes. But it is correct as was pointed out in Morgan and was reaffirmed in Gore that prior sentences of comparative offenders and offences provide some 'range' in fixing an appropriate sentence. 51I note what is set out at [46] through to [59] of the judgment, where his Honour refers to cases, without reciting the citations, of Fitzpatrick, Chen, Singh, Hanza, Tran, Smith, Hoon and Pouoa, Khaled, SZ and of course the first decision considering s 25A, Smiroldo, where the former Justice Hulme of the Supreme Court surveyed the legislative policy and the sentences there imposed. I also note his confirmation of the observations of Justice R S Hulme in Smiroldo, particular in [14] to [16], discussing the issue of the relevance of quantity to sentencing. 52Mr Gould who skilfully represented his client's interests, particularly took me to [24] of the reasons for sentence in Gore for reflecting upon what the sentencing judge had found and then to [43], where the Court of Criminal Appeal in considering the case of Barne(?) noted the relatively small amounts of drugs actually supplied in the premises and the fact that the sales were at "street level amounts", so that the offender was not trading as a wholesaler. 53I must point out in passing that I was also taken to the decision of Baxter, the decision of the New South Wales Court of Criminal Appeal of 2007 which was in fact an appeal from a decision of mine where I misstated the maximum penalty. The Court of Criminal Appeal in that matter did not change the head sentence but varied the nonparole period on the basis of fresh evidence available to it and did not interfere with any other sentences. 54Essentially, it was submitted on behalf on behalf of the prisoner that the prisoner was a street dealer. It was agreed that taking into account the matters on the Form 1, the first count would require a greater sentence than that for Sequence 2. It was submitted that the quantity of supply was at the lower end of the scale but this needs to be considered in the context of what has been said about that matter in Gore and Smiroldo and other cases. 55I took up with Mr Gould the claims of the prisoner in the conversations he had that were intercepted. It was submitted that the prisoner may have been 'talking up' his success as a dealer. This may be so, but for reasons I will expose in a moment I believe there is an element of truth in the claim he made that in fact his sale of the heroin was contributing to his lifestyle and not just his cocaine and methylamphetamine dependence. 56It was submitted on behalf of the prisoner that the profit from the sale of heroin was being spent on the use of cocaine and methylamphetamine solely. 57It was submitted that police had not provided any 'corroboration' of the claims that the prisoner made against his interest. It was submitted on behalf of the prisoner that I should promote his rehabilitation and whilst his record was not encouraging, it was submitted that he was not entitled to leniency, it was a 'shame' that the prisoner could not get access to the Drug Court and the Court should make a finding of 'special circumstances'. 58It was submitted that the relevant aggravating factors that might arise under s 21A were basically those that are implicitly or explicitly confined to the character of the offending. 59The Crown submissions state that it was trafficking to a substantial degree, given the quantities and the amounts of money involved. The prisoner's admission of supplying up to $2,000 worth of drugs on the one day shows that this was not a oneoff activity but a course of conduct. It was in fact his business or his "work". 60The Crown submitted that the primary aggravating factor was his record. He was deeply entrenched in the use and supply of drugs and perhaps the Court might find that working with his associate in relation to Sequence 1 provided an aggravation that he was committing the offence in company. For reasons I will deal with in a moment, I do not propose to conclude that his criminal history is a "aggravating factor" contrary to s 21A(2). It seems to me, of course, as I have said earlier, it does not entitle him to any leniency but I could not conclude it was an aggravating factor. 61For the same reasons as were discussed in Gore I could not conclude that the Sequence 1 offence, even in part, was committed relevantly in company such as to be an aggravating factor. 62The Crown submitted, I think controversially, that the discount to be given to the prisoner, notwithstanding the plea of guilty at the Local Court, should be 20%. 63It was submitted that there had been unconscionable delay to arrive at the plea of guilty in relation to offences for which he was originally charged and it was submitted on behalf of the Crown that thus the utilitarian benefit of the plea of guilty had been diminished. 64With regard to the timing of the plea, Mr Gould submitted that there may have been a number of factors that may explain the delay and that it would be a matter of speculation for the Court to conclude adverse to the prisoner so far as this discount to be given in accordance with the guideline judgment of Thomson and Houlton. I will not go into the details of what he put, but he noted there may have been delays in obtaining relevant information and the like. He also took up the issue of the claim of profit or a gross profit of $2,000 and pointed out it may have been a peak day, it may have been talking up. 65It is to be borne in mind of course, as I pointed out to Mr Gould, that these were admissions made by the prisoner at a time when he did not believe his calls were being intercepted. In other words, they are statements made against interest when he was disarmed and do not have the same character of selfserving statements made when he knows that they are going to be reported to the Court. 66Whilst it is correct to describe the prisoner as a user dealer, it is an oversimplification, in fact inaccurate, to describe the prisoner as selling prohibited drugs solely for the purpose of obtaining money for the use of drugs himself. There are a number of reasons for this finding. 67Firstly, the prisoner on his own admission was a user of amphetamines and cocaine. He admits this in the telephone intercepts but the prohibited drugs he was selling were heroin. Of course this is not the place, nor do I have the evidence, to be undertaking a comparative analysis of the impact of these prohibited drugs and whether the sale of one drug or another that involves the same level of moral turpitude and the like. But the facts of the matter were that he was selling heroin and using other drugs. 68Secondly, there is no doubt he was substantially involved in the business of selling prohibited drugs in the way that that concept has been discussed in Gip and other decisions, and not simply because he was charged with 'ongoing supply'. I also note other decisions dealing with this issue such as Gu, and Fayd'herbe from the Court of Criminal Appeal in 2006 and 2007. 69I have seen ongoing supplies of 18 year old Aboriginal kids in hotels in Wagga being asked by undercover police to find 'a point', not even having drugs on them, running off, getting a point, bringing it back, giving it to the undercover officer, doing the same thing three days in a row. This is far removed from that bare minimum of trafficking culpability. The facts reveal the multitude of dealings and substantial sums of cash beyond the money required to purchase the drugs that he used. 70I bear in mind in this respect that the prisoner has not given any evidence in relation to how he used the profits from his sale of drugs. Any hearsay representations made to the psychologist or others have not been subject to the test of crossexamination and must be approached with some circumspection, particularly having regard to the objective reality in the facts of the extent of his dealing and the admissions he made against interests in the course of intercepted telephone conversations. 71This brings me to the third matter, which is the prisoner's admissions during those telephone intercepts. I have already referred to those in summary. The admissions that I referred to are in para 19 of the facts. I also note the admissions the made during telephone intercepts referred to in para 6, where he referred to his abuse of cocaine and methylamphetamine that distracted him from his work, 'which was the supply of heroin' and also the direct quote in para 14 during the course of the second offence where he said, "I've been in this industry, mate, for a fucking very long time...I'm not stupid, you know what I mean." 72In relation to the various submissions that I have referred to about these 'facts', I appreciate the point made by counsel concerning the possibility of the accused talking up, so to speak, his business and his accomplishments as a drug supplier. But just from the frequency of sales there is clearly some truth in his admission that he was in the industry or the business of supplying heroin for a profit. While some of this profit was used, no doubt, for the purchase of methylamphetamine and cocaine, he was, on his own admission, applying some of the profits to living and expenses and to what I would loosely describe as "lifestyle." 73Of course in sentencing an offender, having regard to this offending, one must keep one's feet on the ground. He clearly was not a wholesaler as that expression has been used in some of the authorities to which I have referred. Sitting in this jurisdiction, clearly the busiest jurisdiction in the Commonwealth of Australia in relation to the issue of drug supply and importation, one is regularly conducting trials and sentencing people involved in the manufacture, supply and or sale of kilograms of prohibited drugs. 74I have presided over at least three trials in the last three years that have involved the importation or the planned importation or the planned importation of hundreds of kilograms of prohibited drug in each instance, primarily cocaine from South America and Mexico. 75That having been said, and accepting that the major distributors take advantage of the weakness of those who are drug dependant to assist them in the distribution of drugs, this prisoner's drug dependency or usage over the relevant period of time covered by the charges did not prevent him coherently and in an organised manner supply heroin. This is exemplified by his multiple use of mobile phones, his use of code, the method and number of sales and supplies of heroin (a drug that he did not use on a regular basis knowing full well the effect of those drugs upon others) and shows his deliberation. 76His own criminal history demonstrates that he would have had an understanding at least of the consequences of illegal drug use either in the promotion of further supplies of drugs by his customers or the commission of other offences in order to obtain the funds to obtain drugs. He knew that if drug dependant and unable to work he could maintain a lifestyle otherwise unaffordable. That is precisely what occurred here. 77Notwithstanding the terms of s 5, noting the submission was made that I should not impose upon the prisoner a term of imprisonment, I have regard thus to the terms of s 3A Crimes (Sentencing Procedure) Act and the various purposes of sentencing that arise. These are sometimes said to point in opposing directions. But clearly in the sentencing of offenders for these types offences, given the seriousness of the offending and as a general and personal deterrence loom large, denunciation and punishment, making the prisoner accountable are all relevant matters to take into account. 78The promotion of his rehabilitation, however, is not to be lost sight of, as was pointed out in the decision of Yardley v Betts, adopted in this State in the decision of R v Blackman and Walters. The promotion of the rehabilitation of offenders works to the benefit not just of the offender but for the community. If people are promoted to pursue a lifestyle that turns them away from offending, that is clearly in the interests of the community. In any event, I have taken into account all the relevant factors under s 3A. 79As I have pointed out, under s 21A there are no specific aggravating factors that arise. I note of course, that, as counsel for the prisoner pointed out, aggravating factors that might be thought to arise are implicitly to be seen as characteristics of this offending. Planning, organisation, financial reward and the like, these are really the very essence of the offending itself and thus fall within the terms of s 21A(4) that the Court is not to have regard to any aggravating factor in sentencing which would be contrary to any act or to do so which includes of course not taking into account any aggravating factor in sentencing if it is an element of the offence pursuant to s 21A(2). 80There is little in the way of mitigating factors. I could not conclude that the prisoner is unlikely to re-offend or that he has good prospects of rehabilitation, notwithstanding the contents of the psychological report. The 'proof will be in the pudding' for the prisoner and his past performance does not engender great hope. I accept the prisoner has pleaded guilty. I can not conclude that the prisoner has expressed remorse save for that evidence by his plea of guilty. I have no direct evidence from the prisoner that permits a finding of remorse as a mitigating factor. So far as other aspects of s 21A(3) they are either not relevant or not made out. 81However, I am satisfied in the context of all the evidence that there are special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. There will be a partial accumulation of the sentence for Sequence 2 upon Sequence 1. That itself is a special circumstance. There is a need to adjust the relationship of the non-parole period to the balance of sentence to give the prisoner an extended period of supervision to adjust to community living and to receive supervision in the community to assist him if he is so desirous of pursuing it and drug rehabilitation and counselling. That is a matter for him and I note he has past attempts have been unsuccessful as the facts of this matter establish. 82It might be fairly said of course that the prisoner has reacted to the death of his fiancé in a way which has remained untreated. But, again, he will have to take responsibility for pursuing that matter. 83In sentencing the prisoner I have had regard to a decision of the High Court in Pearce v R (1998) 194 CLR 610, particularly [45]. I am required to give a specific and appropriate sentence for each matter for which the offender is to be sentenced and then give regard to totality of the criminality and thus assess the extent of accumulation and concurrency as the case may be. 84I have also taken into account the matters on the Form 1, in the way directed by the guideline judgment from 2002, Attorney General's application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002, (2002) 56 NSWLR 146. The focus is upon sentencing the prisoner for the primary offence but the fact that there are matters on a Form 1 are to be taken into account, means that greater weight should be given to personal deterrence and retribution. This has the consequence that the purpose of the process usually, I emphasise the word 'usually' but not always, is to impose a longer sentence than if the primary offence had stood alone and that the additional penalty will not necessarily be small. 85The manner and degree to which the Form 1 offences impinge upon the sentence for the primary offence will depend upon a range of factors and the weight to be given to them in the overall sentencing task. In relation to the effect upon the primary sentence there is no need to specifically distil the extent of that, although that may be reflected in the outcome. It is also the case that a number of authorities have stressed the fact that matters taken into account on a Form 1 do require earnest consideration in the ultimate determination of the sentence for the primary offence. Thus, I have fully taken into account all matters that are required under the legislation and as a consequence of the evidence in the sentencing. 86You can stand up, thank you very much, sir. In relation to the offence, the Sequence 2 offence, that is the second offence in time, you are convicted. The starting point of the sentence is five years imprisonment. I have given you a discount of twenty-five percent. I have noted what the Crown has said but ultimately you were committed for sentence to this Court and I agree with the submissions of your counsel that for me to reduce the discount may involve, on my part, speculation about matters for which no party has sought to produce evidence. In respect of the sentence, thus convicted, you are sentenced to a term of imprisonment of three years nine months, that will date from 9 February 2012 and expire on 8 November 2015. 87In relation to the Sequence 1 offence taking into account the matters on the Form 1 the starting point is five years eight months imprisonment, again I have given you a discount of 25% for the utilitarian benefit of the pleas of guilty. The final sentence thus is four years three months. That sentence will date from 9 August 2013, that is 18 months into the sentence for the Sequence 2 offence. In respect of that offence I fix a period of two years three months. The non-parole period to be served by way of imprisonment is two years three months, that will date from 9 August 2013 and expire on 8 November 2013. In other words, the non-parole period expires at the expiry of the sentence in relation to the Sequence 2 offence. I fix a balance of sentence of imprisonment of two years, that balance of sentence will expire on 8 November 2017. 88Total term of imprisonment is five years nine months with an effective nonparole period of three years nine months. I cannot direct that you be released to parole, that will be a matter for the Parole Authority when your non-parole period expires. You can take a seat, thanks very much. 89Yes, Madam Crown, any technical matters from you? 90GARRITY: No, I don't believe so. 91HIS HONOUR: Any matters from you, Mr Ting? Do you understand the sentence I have imposed for Mr Spiroulias? Your non-parole period, effective non-parole period, is three years nine months and it will be a matter for the parole authority whether you are released but if you are released to parole you will have a parole period of two years, you will be subject to the supervision of the parole authority, they will fix the conditions for your parole. They will no doubt have regard to my judgment subject to any rights of appeal of the Crown and yourself. But whatever happens the fact finding of this Court and any other Court will be taken into account by the Parole Authority. Thank you, very much, you are excused. Thank you, gentlemen, very much.