District Court New South Wales Medium Neutral Citation: R v Gouliaditis (No 2) [2016] NSWDC 216 Hearing dates: 22 July 2016 Date of orders: 22 July 2016 Decision date: 22 July 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW- Sentence – Form 1 – Ongoing supply of prohibited drug – Possess prohibited weapon – Taser – Methylamphetamine – 1-4 Butanediol – Exceptional circumstances justifying sentence other than full time custody. Cases Cited: EF v R [2015] NSWCCA at 36, Category: Sentence Parties: The Crown Nicholas Gouliaditis Representation: Counsel: Mr P Boulten SC - The offender Solicitors: Director of Public Prosecutions Marsdens Law Group - Offender File Number(s): 2014/246261 Judgment 1. HIS HONOUR: I will begin these remarks on sentence by repeating what I said on the last occasion Mr Gouliaditis appeared before me. Drugs are terrible things and users of drugs are often, indeed almost always when they are using drugs, terrible people. They lie, they cheat and they deceive as they pursue their desperate need to obtain drugs. The people who are responsible for much of this misery are drug dealers such as the offender who appears for sentence today. It is for this reason - the harm the drug dealers cause - that ordinarily those who are detected dealing in drugs receive severe, even harsh sentences. 2. This offender's decision to become a drug dealer to supply his own habit was one made when he was himself addicted to drugs. He decided to fund his addiction by supplying drugs to others. He was not one of those drug dealers who was attracted to that criminal activity by the promise of easy money and a luxurious lifestyle. Nevertheless through his drug dealing activities he exposed others to the awful consequences of drug use and drug addiction. His behaviour was wrong and seriously so. 3. The offender had been a recreational drug user for some time since he was attending university. In 2001 he was fined for three offences of possessing a prohibited drug. He tried to abstain but after that drifted back to using drugs a few years later. His mental health went downhill in around 2012, at that time he broke up with a partner, briefly he reunited but then realised that the relationship would not be re-established. A further stress occurred when his parents became aware of his sexuality. Although his parents are fully supportive of him now their reaction when they learnt that he was a homosexual was not a happy one. He was depressed and used drugs to deal with it. At first ice helped him to deal with his emotions, that drug made it easier for him to work and socialise, but as is always the case such improvement was highly temporary. As his usage increased he became depressed and ashamed and began to hate himself. 4. His drug use escalated to the stage where he was using ice intravenously. He entered what many people have described as a downward spiral. While he had previously been an exemplary employee and a very fine solicitor he began to fail to meet deadlines and unless he was in court he would not even get to work before 11am. His conduct was of such concern to his employers that they had arranged for him to be seen by a psychiatrist, that never came about because he was arrested before the consultation could take place. 5. He became distressed as a result of stresses in the relationship with his third partner, a man who used drugs. As a result of his escalating drug use he was greatly in debt. He owed family members $20,000. On two credit cards he had debts totalling $30,000. And he also had personal loans totalling $17,000. It never occurred to him, such was the level of his addiction, that he could have stopped using drugs. Of course looking back at things later he now realises it would have been better to have been revealed as a drug user than to have become a drug dealer, but that is what he became. 6. He has pleaded guilty at the earliest opportunity to two offences, one of ongoing supply of a prohibited drug and another of possessing a prohibited weapon, namely a taser. His drug dealing activities were detected by police who, as part of their investigation, arranged for him to meet an undercover officer. On four occasions she purchased drugs from him. On the first occasion it was .28 grams of methylamphetamine for $200 and 10 mils of 1-4 butanediol for a hundred dollars. A week later he supplied her with a gram of methylamphetamine for $500 and 20 mils of 1-4 butanediol for $200. A further week later he obtained 10.5 grams of methylamphetamine supplying 3.22 grams of that drug to the undercover officer for $1,400. Shortly after that he supplied the undercover officer with 3.5 grams of methylamphetamine for $1,400 and a quantity of 1-4 butanediol for $2,500. 7. Of course it is some comfort that those particular drugs did not actually make it to any users but the offender was not to know that and, in any case, he does not pretend that the only drugs he supplied were drugs to undercover police officers. 8. When I sentence him for the offence of ongoing supply he has asked that I take into account five matters on a Form 1, one of those is an offence of supplying 2.25 grams of methylamphetamine to a man by the name of Gary McCort. The offender supplied him with methylamphetamine on three occasions after which Mr McCort was arrested and the drugs he had in his possession were seized. After he was released by police he contacted the offender and told him that he required further drugs to replace the ones that had been taken from him. The offender did supply him with drugs on that occasion. 9. Also appearing on the Form 1 is an offence of resist arrest. When police arrested the offender he struggled with them. The police were particularly interested in seizing the iPhone that he had in his possession. 10. When police searched him they found 1.38 grams of methylamphetamine and $1,145. The offence of possessing the quantity of methylamphetamine appears on the Form 1 as does an offence of dealing with the proceeds of crime relating to the money found in his possession. 11. Finally when dealing with the Form 1 when police searched the offender's car they found ten vials containing a total of 106.4 mils of 1-4 butanediol. 12. After his arrest the offender told police that in his room at his home they would find a safe and in the safe they would find a taser. The offender provided police with the electronic code to access the safe and police did find such a prohibited weapon in the safe. The offender explained that a person who was supplying drugs with him tried to get him to buy the taser, when that request was made his partner was with him and he encouraged him to buy the taser, so he took it but never actually formed the intention to buy it. He gave evidence that he had never used the taser as part of his drug dealing activities. 13. So the offender stands to be sentenced for the offence of ongoing supply of prohibited drug and possessing a prohibited weapon. Both offences are very serious. The drug matter carries a maximum penalty of 20 years while the prohibited weapon matter carries a maximum penalty of 14 years with a standard non-parole period of three years. I have taken into account both the maximum penalties and where appropriate the standard non-parole period in deciding on the sentences to impose on the offender. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 14. As I mentioned the offender pleaded guilty at the earliest opportunity to those offences. There is also another factor which I will not mention but which is well known to the parties. When I take into account the pleas of guilty and that other factor I have decided to impose a sentence on the offender which is 40% less than it would otherwise have been. 15. There is a principle of law which is well-know and which needs to be applied when drug dealers are sentenced. It is this; those who are trafficking to a substantial degree must receive a sentence of fulltime imprisonment unless there are exceptional circumstances. At least that was the principle of law stated at the time before the sentencing option of an intensive corrections order was available. Whether the principle continues to apply in those terms now that ICO's are available is a matter worthy of consideration. 16. Ultimately one day the Court of Criminal Appeal may provide some guidance as to whether the introduction of ICO's as a sentencing option requires some modification of the well-known rule. In EF v R [2015] NSWCCA 36, Simpson JA at para 12 made an observation, she said: "I further observe that, at the time these statements of 'policy' or 'rule' were made, the option of an intensive correction order did not exist that was introduced into the Sentencing Procedure Act with operation from 1 October 2010...". 1. Justice Simpson's observations is one which has been made on many occasion by judges of this court. 2. In my view it is important to recognise what sentencing options were available at the time the rule was first laid down and then repeated on many occasions. The most significant form of punishment short of fulltime custody was periodic detention. As is well known by the older judges and lawyers, the way periodic detention operated was such that after one third of the sentence had been completed there was no custodial component at all. Indeed it operated from then on more like a community service order than a sentence of imprisonment. One can understand, when that was the most significant punishment short of fulltime imprisonment, the rule that fulltime custody was required in cases where offenders were trafficking to a substantial degree, unless there were exceptional circumstances shown. One could understand why the rule would be stated in those terms, given the sentencing options available to sentencing judges at that time. 3. Intensive corrections orders are, as Simpson JA recognised a new form of sentence. No one could suggest that they approach the severity of fulltime custody but they do involve substantial limitations on a person's liberty. 4. Of course what I have said thus far about the intensive corrections order option is of less importance if the offender satisfies me that there are exceptional circumstances which would justify a sentence of other than fulltime imprisonment. It has always conceded by Mr Boulten SC, who appears for the offender, that his client was trafficking to a substantial degree. 5. Mr Boulten shouldered the burden of attempting to demonstrate to me that there were such exceptional circumstances. He fully acknowledged that no one circumstance was of itself exceptional, but together he submitted that they did amount to exceptional circumstances justifying a sentence of other than fulltime imprisonment. He referred to the following matters: 6. Firstly there was the offender's motive. I have already discussed this, this was not a case where the offender dealt in drugs to provide himself with a luxurious lifestyle. To the contrary his life was falling apart in a most unattractive way. His motivation for supplying drugs was to fund his own drug addiction. 7. Secondly Mr Boulten relied on the offender's psychiatric disorder which arose around the time he decided to sell drugs, for a number of reasons. 8. The third matter relied on by Mr Boulten is something which I will not mention in these publically published remarks but again the parties know what I am talking about and if necessary so will the Court of Criminal Appeal. 9. Fourthly Mr Boulten relied on the substantial remorse demonstrated by the offender. He now acknowledges that lives are destroyed through drug use and that his actions in supplying drugs helped to cause such harm. 10. Mr Boulten relied on 11 months of quasi custody undergone by the offender. He spent 11 weeks in Odyssey House before he was asked to leave, not because of any drug use it should be emphasised, and then eight months in William Booth House from which he successfully graduated with glowing reports. 11. Sixthly there is the topic of extrajudicial punishment. As I have mentioned the offender was a fine young lawyer with much promise. He accepts now that that career is now denied him. 12. Seventhly there is the offender's particular vulnerability in prison. He suffers from some physical illnesses, and he would no doubt find incarceration a frightening prospect as a result. 13. The final matter relied on by Mr Boulten is the offender's rehabilitation. When he first appeared before me he had only recently graduated from the Salvation Army program. For only a very short time he had been living in the community away from the highly structured experience of life in William Booth House. He had not used drugs while there and he had no intention of using drugs ever again, but as Major Seymour the then manager at William Booth House recognised, predicting whether he would be rehabilitated for life would be more accurately assessed if he demonstrated a substantial period of being drug free while in the community. Accordingly I adjourned the matter under s 11 of the Crime (Sentencing Procedure) Act, over objection from the Crown,. As I explained at the time, his conduct while on the s 11 remand would be of assistance to me in deciding whether fulltime custody was required and if it was how long that should be. 14. Further evidence was tendered today concerning Mr Gouliaditis' behaviour since I adjourned the matter. His rehabilitation has continued, it has continued to the extent that he is now in fact employed fulltime at William Booth House. After the matter was adjourned he began by volunteering there. There was a staff shortage in January 2016 and the offender accepted casual fulltime employment. In February 2016 the position was offered to him on a permanent basis and Mr Gouliaditis accepted. Thus Mr Gouliaditis is in no small way doing much good for the community, particularly by assisting people of the type he harmed through his drug-dealing activities. Many times in sentencing considerations such as paying back to the community for the harm an offender has caused are taken into account. In this case the offender's current role very much achieves what he can in that regard. 15. As I mentioned he has harmed many people through supplying drugs to them but he is now assisting such people through his work at William Booth House. One consequence of where he works is that Mr Gouliaditis is almost on a daily basis assessed as to how his rehabilitation is going. A letter from Major Seymour, the offender's employer was tendered today, he says: "My view is that Nick is doing exceptionally well, he remains honest about the issues that underpinned his addiction and talks positively about how his life (in particular his relationship, family and friends) has improved since graduating from WBH. Importantly he continues to attend chapel every week, meet with his sponsor regularly and attend 12 step meetings. I am also aware that Nick is receiving treatment from a psychiatrist and therapist. These are the foundations of a strong recovery." 1. Other material tendered today supports the assertion that the offender's rehabilitation is proceeding well. There is one qualification to that of course and that concerns a drug screening test conducted on a urine sample which the offender provided on 14 March 2016. Evidence was called as to the nature of the testing which produced that result. The offender gave evidence, expert reports were tendered, Mr Seymour's letter refers to it and a letter from the offender's sister was also tendered. I note that the Crown did not object to the hearsay nature of the letters from Mr Seymour and Sabula Gouliaditis, the offender's sister. 2. The conclusion I have reached regarding the test on 14 March sample is that it was a test which revealed a false positive. I say that for the following reasons: the evidence has established that the test conducted on that sample was a screening test only, it seems to be undisputed that substances other than amphetamine can react in a similar way to amphetamine in such a screening test and that further testing is required to either confirm or disprove the presence of amphetamine once a screening sample suggests that that drug might be present. Unfortunately for the reasons which were explained in evidence, such further testing was not possible on the 14 March sample, it having been destroyed seven days after the screening test was carried out. 3. What I have already said about the nature of the test conducted on 14 March is confirmed by something else. A further screening test conducted in April has the notation FTR, (further testing required) but after such further testing was carried out it was revealed that there was no amphetamine present. That tends to support the assertion that the screening test can produce a false positive. 4. The third factor which has led me to conclude that it was in fact a false positive concerns what is something I mentioned earlier. He was at the time, and still is, working fulltime at William Booth House - a place where many people are highly alert to the effects of drug use on people and could be expected more than almost anyone else in the community to be able to identify when a person has used drugs. Major Seymour, who at that time had daily contact with the offender, saw no indication that he had taken drugs, nor did any other staff at William Booth House raise their concerns that the offender had used drugs with Major Seymour. 5. There was also a letter from the offender's sister to which I made earlier reference. It is important to note that the test of the sample on 14 March came six days after a negative result from a sample produced on 8 March. Thus if the offender had in fact used drugs it must have been in those six days, yet the letter from Ms Gouliaditis speaks about his movements in those six days and her observations of him over that time. There are also inconsistent with the offender having used drugs in that six day period. 6. I should not also that the offender himself gave sworn evidence that he had not used drugs since he first appeared before me. He was cross‑examined with an appropriate degree of scepticism by the Crown. His answers explained many of the concerns that I might otherwise have had as to whether he truly had given up drugs as he told me had. 7. And then the final matter I took into account regarding the test of 14 March was that after this experience there was a change in the testing facilities used. From then on the offender began to use a testing facility which complied with the relevant Australian Standard. He has been regularly tested since moving to that testing facility and there has been no further suggestion of there being any amphetamines in his urine. For those reasons I am satisfied that the result produced from the testing of 14 March sample was a false positive and did not demonstrate the offender's use of illegal drugs. 8. As I mentioned earlier, when the matter was first before me the Crown opposed a s 11 remand. It was the Crown's position at that stage that nothing less than fulltime custody was required. I gather that the Crown has now modified its position. The Crown emphasises that custody of some sort is required but no longer presses for fulltime custody. Sometimes when the Crown agrees with a submission put by counsel for an offender it makes the job of sentencing job harder rather than easier. This is not a jurisdiction where parties can bind the judge about what sentencing outcome is appropriate. 9. I am satisfied that there are exceptional circumstances justifying a sentence of other than fulltime imprisonment. I have determined the length of the sentences to impose upon the offender and after taking into account the discount of 40% to reflect the offender's early pleas and the other matter, alternatives to fulltime custody thus become available. Given the likelihood of a sentence of two years or less I propose to refer the offender for assessment as to his suitability to serve that sentence by means of an intensive corrections order. 10. There are only two conditions of bail, not to use, any illegal drugs whatsoever and to tell the officer-in-charge if he moves address within 24 hours of having moved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2016