R v Petkos (No.2) [2019] NSWDC 330

District Court New South Wales

Medium Neutral Citation: R v Petkos (No.2) [2019] NSWDC 330 Hearing dates: 4 April 2019 and 17 June 2019 Decision date: 17 June 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 8 years with a non parole period of 5 years. Catchwords: CRIME - SENTENCE - supply prohibited drug, greater than the large commercial quantity for that drug - attempting to supply prohibited drug, greater than the indictable quantity for that drug. Legislation Cited: Drug (Misuse and Trafficking) Act 1985 (NSW): SS 25(2) and 25(1) Cases Cited: R v Petkos [2019] NSWDC 175 Category: Sentence Parties: Regina (Crown)

Jim Petkos (Offender) Representation: Ms Chan (ODPP)

Mr Smith (Counsel for the offender) File Number(s): 2018/160433 Publication restriction: Nil

​Judgment 1. Jim Petkos, you appear for sentence today in relation to two principal offences. 2. The first principal offence (Sequence 1) is supplying a prohibited drug, greater than the large commercial quantity for that drug. This involves a contravention of s 25(2) of the Drug (Misuse and Trafficking) Act. 3. The maximum penalty for that offence is life imprisonment. There is a standard non-parole period of 15 years imprisonment. 4. The second principal offence (Sequence 4) is attempting to supply a prohibited drug, greater than the indictable quantity for that drug. This involves a contravention of s 25(1) of the Drug (Misuse and Trafficking) Act. 5. The maximum penalty for that offence is 15 years imprisonment. There is no standard non-parole period. 6. In addition to those two principal offences, you have asked me to take into account, in relation to the first principal offence, two matters on a Form 1 which I have certified. Those two matters are: possessing a prohibited weapon; and possessing a precursor for the manufacture of a prohibited drug. 7. The facts surrounding your offending conduct are now contained in a document entitled "agreed facts", being part of the Crown's amended Crown sentence summary. I say "now" because there was a version of facts advanced earlier in the sentence hearing which has effectively been withdrawn, although there are some residual consequences in connection with that to which I shall refer in these remarks (see R v Petkos [2019] NSWDC 175). 8. As at March 2018, you were approximately 49 years of age. You were living on your own at premises in Winston Hills. Specifically you were living in a granny flat at those premises - although the principal part of the premises seems to have been owned by you but leased out to others. 9. In circumstances not revealed by the (now) agreed facts, your activities became the subject of interest by the New South Wales Police. As a consequence, the police obtained a warrant for the lawful surveillance of your mobile phone service. 10. When that warrant was deployed in the period of March to May 2018, the police found that you were engaging in what is described as "drug supply chatter" for a drug commonly known as GBL. 11. Furthermore, in the period of 20 March 2018 to 17 April 2018, consignments of goods from China to Australia were intercepted by the Australian Border Force and which contained quantities of hypo-phosphorous acid - but you have not been charged with either of those two importations. Those facts are placed before the Court as what is described as "background" - but from which I have concluded that the offences to which I shall shortly turn were not isolated offences. 12. On 3 May 2018, a consignment of goods arrived in Australia addressed to you and which you had arranged to be imported. It was a package of 584.3 grams of GBL. This quantity of drug had a purity of 98.7 per cent. 13. It is not insignificant to compare the quantity that you imported (584.3 grams) to the indictable quantity (50 grams) and the commercial quantity (1 kilogram). 14. It is your importation of that drug into this country that constitutes the second principal offence of attempting to supply a prohibited drug. 15. In this operation, you stood to make only a modest profit. But you were not at the low end of the chain of activity. You were not a small time street dealer. You were not some intermediary. You were the principal. 16. In terms of its objective seriousness for an offence of its kind, I find it to be slightly below the mid-range. 17. Four days after that consignment arrived in Australia, a further consignment, which had been ordered by you, arrived. Upon its interception by the Australian Border Force, the contents were found to be 5,624 grams of GBL - with a purity of 98.5 per cent. 18. It is your importation of that drug into this country that constitutes the first principal offence of supplying a prohibited drug. 19. Again, you were the principal in the importation of this drug. 20. You also stood to make only a modest profit in relation to this operation. 21. In terms of its objective seriousness, I find it to be equidistant between the middle and the bottom of the range for an offence of its kind. 22. Also in this consignment were five litres of hypo phosphorous acid. That is a precursor chemical for use in the manufacture of methylamphetamine. It is one of the two matters to be taken into account with the first principal offence. Because of the nature of that Form 1 matter, there will be a meaningful increase in the sentence for the first principal offence. 23. The police subsequently effected a search warrant at your granny flat. 24. During the course of the execution of that warrant, they found a device commonly known as a Taser, disguised as a torch. That is the second matter on the Form 1 to be taken into account with the first principal offence. Because of the nature of that matter, there will be a slight increase in the sentence for the first principal offence. 25. There is no additional aggravating feature of your offending. 26. As I have indicated, you were 49 years of age when you embarked upon these importations. 27. Why you did it remains something of a mystery to me, Mr Petkos, considering the risk that you have placed yourself in, compared with the modest amount of money you stood to make. But you have not chosen to tell me why you did it. 28. In the absence of any sworn evidence by you, I have looked with considerable scepticism on what is contained in the psychiatrist's report and in the sentencing assessment report, when those two documents purport to record your remorse. 29. In the first version of the agreed facts, you advanced some exculpatory version of events. It was a version which you persisted in when you saw Dr Nielssen and when you were interviewed by the author of the sentencing assessment report. Indeed, that exculpatory version of events - in which you purported to say you had innocently sought to import cleaning product and that you were unaware that the drug was an illegal drug - does not sit comfortably with the purported expressions of remorse in the letter to the Court which is Exhibit 2. 30. There is no explanation for your conduct in your modest and limited criminal history. Your offending in the past is of a minor kind. It disentitles you to the leniency that, in appropriate circumstances, can be extended to a first offender. But it is certainly not an additionally aggravating factor - and it provides no explanation for your offending behaviour on this occasion. 31. You have no drug issues of your own, legal or otherwise. 32. You were brought up in a loving and supportive family. You have the love and support of your sister. You have a relationship with a woman who loves you. You have been an honest, hardworking man since you left school. 33. You suffer from a depressive condition which seems to be of a long term nature - and it may have been genetically inherited (your father suffered from a similar condition). You have, on at least one occasion in the past, had issues with self-harm. But your depressive condition has nothing to do with your offending. It provides no explanation and no excuse. 34. You entered a plea of guilty at the first available opportunity. I do not think it has any element of remorse to it. It was a plea entered in the face of a very strong Crown case. 35. Your absence from the witness box undermines the expressions of remorse that you have advanced through Exhibit 2 and through the psychiatrist's report; and - as I have already indicated - those expressions of remorse have been further undermined by the abandoned exculpatory version of events. 36. Notwithstanding that I am not satisfied, on the balance of probabilities, as to your genuine remorse, by having regard to your age, your work history, and your limited criminal antecedents, I am satisfied that your prospects of rehabilitation are reasonable. 37. For that reason I think that the concept of specific deterrence is to a degree reduced - that is, fixing a sentence which will deter you from reoffending is reduced (even though I have my residual concerns about no explanation for this offending being advanced). 38. However, Mr Petkos, the sentence needs to be one that discourages others from doing what you have done and so general deterrence is fully engaged. 39. You have been in custody since you were arrested on 22 May 2018 and the sentence will be backdated to that date. 40. This is your first time in custody. Because of that fact, and because of your ongoing depressive condition, this will make imprisonment harder for you than for others. I make a finding of special circumstances to modestly vary the ratio of the head sentence to the non-parole period. 41. I am going to impose an aggregate sentence. 42. Because of the discrete acts of criminality, there would have been partial accumulation but for the aggregate sentence. 43. In relation to sequence 1, and taking into account the two matters on the Form 1, except for your plea of guilty and the consequential discount of 25%, the indicative sentence would have been 8 years and 6 months imprisonment. With the discount of 25%, the indicative sentence is 6 years and 4 months, with an indicative non-parole period of 4 years and 1 month. 44. In relation to sequence 4, except for your plea of guilty, the indicative sentence would have been 6 years imprisonment. With the discount for 25%, the indicative sentence is 4 years and 6 months. 45. Jim Petkos, of the offences of supplying a prohibited drug, greater than the large commercial quantity and attempting to supply a prohibited drug, greater than the indictable quantity, you are convicted. 46. I sentence you to a term of imprisonment of 8 years. 47. I fix a non-parole period of 5 years to date from 22 May 2018 and which will expire on 21 May 2023. 48. I fix a balance of 3 years to date from 22 May 2023 and which will expire on 21 May 2026. 49. I make a drug destruction order. 50. You will now go with the officers, thank you.