District Court New South Wales Medium Neutral Citation: R v Muniak [2019] NSWDC 894 Hearing dates: 9 May 2019; 26 July 2019 Decision date: 29 July 2019 Jurisdiction: Criminal Before: King SC DCJ Decision: Indicative sentences: 2016/33501 Count 1 – 18 months imp Count 2 + Form 1 (Count 3) – 18 months imp 2018/244726 SEQ 19 – 2 years imp SEQ 24 + Form 1 SEQ 3, 5, 10, 16, 17, 26, 37 – 4 years imp – NPP 2 years 6 months imp SEQ 25 + Form 1 SEQ 4, 6, 9, 22, 27, 30, 31, 38 – 3 years 6 months imp SEQ 28 – 1 year imp Aggregate sentence: Special circumstances found – need for a longer period of supervision on parole to assist in addressing his use of prohibited drugs. The offender is sentenced to a total term of imprisonment of 6 years comprising a NPP of 4 years commencing on 24/5/18 and expiring on 23/5/22 and a balance of term of 2 years to commence on 24/5/22 and to expire on 23/5/24. Catchwords: CRIMINAL – Sentence - supply prohibited drug – MDMA, methylamphetamine, gamma‑butyrolactone – extensive delays to sentencing caused by outstanding Local Court matters, possible traversal of pleas, eventual adherence to original pleas, Legal Aid grant – 2 rafts of offending – "off the rails" then "over the cliff" – aggravating features – offences committed while on conditional release - discounts applied - Form 1 matters – aggregate sentence – subjective matters Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985 Cases Cited: Thomson & Houlton (2000) 49 NSWLR 383 Category: Sentence Parties: Regina Paul Muniak Representation: Solicitors: Mr S Jaeger Ms A James Ms J Quinones File Number(s): 2016/33501; 2018/244726 Judgment 1. Paul Muniak appears for sentence in relation to a number of offences constituting two separate occasions of offending. I deal with the first in time. The offences are: 1. he did supply a prohibited drug, being 23.54 grams of methylamphetamine; 2. he did supply a prohibited drug being 11.79 grams of 3,4‑MDMA or methylenedioxymethamphetamine. 1. When being sentenced in respect of the second of those offences, that is, supply 11.79 grams of MDMA, he asks the Court to take into account a further offence contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The further offence is an offence of supplying gamma‑butyrolactone, being 67.3 grams. 2. In relation to each of the two offences in respect of which he is to be sentenced, the maximum term of imprisonment provided is 15 years. There is no relevant standard non‑parole period. In addition, in relation to the Form 1 offence, if dealt with separately, the penalty provided is, again, 15 years with no relevant standard non‑parole period. 3. The offender was committed for trial from the Local Court to the District Court on 16 August 2016. He was arraigned on 26 August 2016 and a trial was listed to commence 3 July 2017. However, the matter was delayed due to no judge being available, and two days later, on 5 July 2017, he entered a plea of guilty to Counts 1 and 2 on the indictment, with Count 3 to be placed on a Form 1 and there to be no further proceedings in respect of Count 4 on the indictment. Agreed facts were signed and tendered as Exhibit 1 on the sentence proceedings, together with the expert statement of Detective Sergeant Carter. 4. However, the matter was then listed for sentence on 19 January 2018 and on that date, the accused indicated that he wished to traverse his plea, and his then current solicitors were granted leave to withdraw. It was again listed for mention on 2 and 23 February 2018. On each occasion, the offender appeared in person, indicating that he was seeking Legal Aid representation in respect of his wish to traverse the plea. 5. On the latter date, 23 February 2018, a new sentence date was set for 10 August 2018, but to be further mentioned on 22 March 2018 for investigation as to the status of his representation and whether the traversal would be pursued. On 22 March 2018, he indicated that he now had a Legal Aid grant and that Legal Aid were looking to brief the matter out to a private solicitor. It was adjourned until 19 April 2018. On that date, the offender did not appear. No motion of plea traversal was filed or has been filed since. A sentence date of 10 August 2018 was confirmed. 6. The matter was next before the Court on 10 August 2018. In the meantime, the offender had been arrested on other offences on 8 August 2018. In the circumstances, the sentence date of 10 August 2018 was vacated and the matter listed for mention of bail review on 28 August 2018. On that date, the offender was represented by solicitors and an adjournment was granted to 2 October 2018. On 2 October 2018, bail was revoked for the sentence offences on a Crown detention application, which was not opposed. The offender was in custody at that time as a result of other charges. 7. On 14 January 2019, the matter was listed for sentence. The defence sought a further adjournment, which was granted and the matter was adjourned to 9 May 2019. On that date, the matter was listed before me for sentence, when the offender continued the plea of guilty originally entered on 5 July 2017. 8. It was evident from the Crown material tendered on that date that the offender had a fresh raft of offences which were still pending in the Local Court. Clearly, if the offender was going to plead guilty to those charges, it was in his interest to bring them forward without delay and have them joined to the current charges, in effect, so that they could be dealt with at the one time and issues of concurrency, accumulation and totality could be taken into account by the one judge. 9. In view of those circumstances, the matter was adjourned to Friday, 26 July 2017. The matter returned before me on that date and the matters that had been pending in the Local Court were, as expected, the subject of indication from the Local Court of pleas of guilty and the matters were consolidated before me. 10. Each of the three previous matters referred to were in fact contrary to s 25(1) of the Drug (Misuse and Trafficking) Act. The first of the fresh matters was supply a prohibited drug, being 113.5 grams of gamma‑butyrolactone, also contrary to s 25(1) of the Drug (Misuse and Trafficking) Act with a maximum penalty of 15 years' imprisonment and no relevant standard non‑parole period. 11. The second offence was supply a prohibited drug, being 1,326 grams of gamma‑butyrolactone, contrary to s 25(2) of the Drug (Misuse and Trafficking) Act. The maximum penalty provided in respect of that offence is 20 years' imprisonment and/or 3,000 penalty units and there is a relevant standard non‑parole period of ten years. 12. The third offence is supply a prohibited drug, being 84.67 grams of methylamphetamine, contrary again to s 25(1) of the Drug (Misuse and Trafficking) Act and similarly, 15 years is the maximum. The fourth offence is knowingly deal with the proceeds of crime, being $3,710 contrary to s 193B(2) of the Crimes Act 1900, in respect of which there is a maximum penalty of 15 years and again, no relevant standard non‑parole period. 13. When being dealt with in respect of the offence of supply a prohibited drug, 1,326 grams of gamma‑butyrolactone, being a commercial quantity, that is, more than 1 kilogram, the offender asks for a number of matters contained on a Form 1 to be taken into account. Those are seven separate offences, the detail of which I will refer to later; being four offences relating to gamma‑butyrolactone, two offences relating to cannabis and one offence relating to ketamine. 14. In relation to the third offence of the second raft of offences that I referred to, that is, supply a prohibited drug, 84.67 grams of methylamphetamine, the offender also asks the Court to take into account a number of offences contained on a Form 1, those being eight in total; being three offences relating to methylamphetamine, one offence relating to LSD or lysergic acid, one offence relating to 3,4-methylenedioxymethamphetamine or MDMA, and two offences relating to Alprazolam. 15. In relation to the first three offences, to which he entered pleas of guilty on 5 July 2017, those were very belated pleas, being two days after the trial was listed to proceed; and they have the disadvantage of the offender delaying sentence by indicating the wish to traverse the pleas. In my view, the maximum discount for the utility of the plea that can be allowed in those circumstances is 5%, and such a discount will be provided. 16. In relation to the more recent offences, committed between 28 June 2018 and 8 August 2018, the plea of guilty was entered in the Local Court and it is appropriate to accept that that is a plea at the earliest opportunity and that a 25% discount for the utility of the plea alone, as referred to in Thomson & Houlton (2000) 49 NSWLR 383, should be provided and will be provided. 17. I will deal firstly with the facts in relation to the first raft of offences. The facts are agreed and are as follows: 18. On 1 February 2016, police obtained a search warrant for a room at the DeVere Hotel in MacLeay Street, Potts Point. 19. The hotel room was booked and paid for by the offender. At the time of checking in, the offender added the name "Jade Wren" to the room booking. Jade Wren‑Pearson denies giving the offender permission to do this. 20. At 6.05pm, police gained entry to the room, finding that no person was there. They searched the room in accordance with the warrant and located personal documents in the offender's name, including in a wallet, a New South Wales driver's licence and other cards. Other documents located were jointly in the name of the offender and "Barry", or "BJ Wooldridge". There were also some documents in the name of Wooldridge alone. Mr Wooldridge had previously been in an intimate and business relationship with the offender. Supply prohibited drug, methylamphetamine 1. During the search, police found in two plastic containers and a glass bowl on the kitchen bench, quantities of the prohibited drug methylamphetamine, later found to weigh in total 23.54 grams. Of the total quantity, 9.26 grams had a purity of 74% and 14.1 grams, a purity of 54%. Supply prohibited drug, gamma‑butyrolactone (Form 1) 1. During the search, police found in the kitchen, in a glass vial, two glass bottles and in three small, fish shaped plastic containers, a quantity of the prohibited drug gamma‑butyrolactone (GBL); total weight on analysis being 67.3 grams. Supply prohibited drug, 3,4-methylenedioxymethamphetamine (MDMA) 1. During the search, police located a resealable plastic bag containing brown powder, found to be 7.29 grams of MDMA with a purity of 63%. Police also found 37 blue and white capsules inside two resealable plastic bags, found to be 4.5 grams of MDMA with a purity of 74.5%. The total weight of the MDMA was 11.79 grams. 2. During the search, police found a security box which contained a drug encapsulator, also known as a capsule filling machine. Also in the safe were a large quantity of empty capsules and a blender. 3. During the search, police located large numbers of empty resealable bags in a variety of sizes, glass vials and bottles in a variety of sizes, unused glass pipes commonly used to smoke methylamphetamine and a number of small electronic scales. 4. Police made contact with the offender whilst conducting the search and asked him to attend Kings Cross Police Station, which he did. He was placed under arrest, cautioned for the above offences and placed in custody. He was provided with his rights. 5. The offender agreed to accompany police to the room at the DeVere Hotel to witness the continuing search. Whilst at the scene, he was asked by police about his involvement with the room. He told them that it was his aunt, Jade Wren's place, and that he was staying there. He denied any knowledge of the drugs and drug paraphernalia. He agreed that some of the items located in the room were his, including an EFTPOS machine which he used for his business, a hard drive and an iPad. 6. The offender declined to participate in a recorded interview with police. 7. In the sentence proceedings, Mr Muniak has been represented by Ms Quinones. In sentencing submissions provided to the Court, Exhibit M1, in relation to the first raft of offending, Ms Quinones submitted that the offending fell into the midrange of objective seriousness. 8. The Crown prosecutor, Mr Scott Jaeger of the New South Wales ODPP, at that time was slightly more generous to the accused and assessed them as falling slightly below the midrange of seriousness. I will give the offender the benefit of the Crown concession that they are slightly below, although in my view, so slightly as to make perhaps no significant difference to being midrange offences, but slightly below. 9. I turn now to the second raft of offences, noting that prior to the time of the first offending conduct, the offender, who is now 33 years of age, had no previous criminal history at all. In respect of the first offending, he was arrested on 1 February 2016 and released on 2 February 2016 and although the Crown counts that as one day in custody, I will count it as two days. 10. He was bail refused in relation to those matters from 10 April 2016, after being arrested in respect of other offences, and that is offences other than the second raft of offences from 10 April 2016 to 6 July 2016; a period of, on the Crown's estimate, 87 days but which I will count as 88 days. 11. On 20 March 2017, he was imprisoned in relation to a number of offences committed while on bail in respect of the first raft of offences for which I am sentencing him. He was released on parole in respect of those offences on 19 October 2017. On 9 August 2018, he was arrested in relation to the second raft of offences with which I am dealing; and he has been in prison as a result of those matters since that date until today. 12. The agreed facts in relation to the second raft of offences are as follows. I note that as there are some 19 offences in total, including the matters on the Form 1, that I do not intend to put the full agreed facts on the record as part of my reasons, however I have taken into account the full content of the agreed facts. In particular, I intend to leave out each of the conversations recorded by way of lawful telephone intercepts. Background 1. As of 8 August 2018, the offender was aged 32 years and resided at 26 Comber Street, Paddington. 2. In May 2018, Strike Force Mick was established to investigate the ongoing supply of prohibited drugs by the offender. 3. From 28 June 2018 to August 2018, a mobile phone used by him was intercepted by police. During that period, several thousand SMS messages and calls were transmitted to and from the device. The text messages contained instructions to the offender that he should communicate using encrypted messaging applications, such as "Wickr", "Confide" and "Telegram". 4. It was generally the practice of the offender to supply drugs from two locations; his home address, Comber Street, Paddington, and/or a 7‑Eleven service station located on Oxford Street at the intersection of Greens Road in Paddington. 5. The offender also used different aliases, including "Harry Hyatt" and "Harry Hilton". He also had several forms of identification in his name. 6. All phone calls and messages used code words as a way of communication; for example, "food" for methylamphetamine; "drinks" for gamma‑butyrolactone; "tabs" for LSD and "pot" for cannabis leaf. I note not included in the facts that "pot" is in fact a fairly common nickname or slang for marijuana that has been used for at least the last 50 years. Rather than being a code, it is a fairly obvious reference. Sequence 3 supply prohibited drug less than a small quantity being 20 mils GBH 1 July 2018; Sequence 4 supply a prohibited drug, less than a commercial quantity, 0.5 grams methylamphetamine (1 July 2018) 1. At about 4.28pm on 1 July 2018, a customer using a mobile phone contacted the offender. The relevant part of the phone call is transcribed in the agreed facts, which I will not repeat. 2. Muniak and the customer agreed to meet at an unknown location in Sydney where he would supply 20 mils of gamma‑butyrolactone, referred to as "drinks" in addition to 0.5 grams of methylamphetamine, referred to as "food" in the call. Sequence 5 supply a prohibited drug, less than a small quantity (unknown quantity GBL (1 July 2018) 1. Later, at about 6.33pm on the same date, the same customer called the offender again in order to make another purchase order. The relevant part of the call is transcribed in the facts. 2. At about 6.54pm, the same customer called the offender to advise him that he had arrived to purchase the GBL. 3. At about 6.54pm, the customer arrived at Comber Street, Paddington, and purchased an unknown quantity of GBL from the offender. Sequence 6 supply a prohibited drug, less than a small quantity, 0.2 grams methylamphetamine (6 July 2018) 1. At about 9.10pm on 6 July 2018, a customer called the offender for the purpose of purchasing methylamphetamine. The phone call is transcribed in the facts. 2. The offender then attended the address of the customer and placed 0.2 grams of methylamphetamine into the mailbox. Reference to the term "bagging", was terminology used to describe an amount of drugs usually sold in a small, clear, resealable bag. The term "points" used in the conversation is a form of measurement used to describe 0.1 grams of methylamphetamine. Sequence 9, supply a prohibited drug, less than small quantity, LSD (13 July 2018) 1. On 13 July 2018, a customer using a mobile phone had a text message conversation with the offender which is transcribed in the facts. 2. In the telephone calls, the offender referred to "tabs" when referring to LSD, being thin pages that resemble paper containing acid, or LSD. The offender agreed to sell the customer 14 tabs for less than what he, the offender, had been paying for them, which was $25 a tab. Sequence 10, supply a prohibited drug, less than small quantity, unknown quantity cannabis leaf (16 July 2018) 1. At 2.12pm on 16 July 2018, a customer using a mobile phone initiated a text message conversation with the offender. The relevant text message is transcribed in the facts. 2. At about 6.07pm on the same day, the customer attended the offender's home in Paddington and purchased an unknown quantity of cannabis leaf. Sequence 16, supply a prohibited drug, small quantity GBL (between 6.48am and 10am on 22 July 2018) 1. At 6.18am on 22 July 2018, a customer using a mobile phone called the offender. The conversation is transcribed in the facts. 2. Sometime between 6.48am and 9.01am, the offender met with the customer at the Bodyline Spa located in Taylor Street, Darlinghurst. The offender then supplied the customer with a small quantity of GBL. Sequence 17, supply a prohibited drug, small quantity GBL (22 July 2018) 1. At about 9.22pm on 22 July 2018, a customer using a mobile phone contacted the offender. The relevant conversation is transcribed in the facts. 2. At about 11.31pm, the offender met with the customer at an unknown location in Sydney and then supplied the customer with 50 mils of GBL, as referred to in the conversation. Sequence 19, supply a prohibited drug, 113.5 grams GBL (between 5.28pm and 6.30pm on 26 July 2018) 1. At 5.28pm on 26 July 2018, a customer, being a female by the name of McGregor, called the offender. The conversation is transcribed in the facts. 2. At the time, plain clothes police were conducting surveillance of the offender's premises and saw the female enter the offender's house. A short time later, she exited, carrying a small Coca‑Cola bottle containing clear liquid. She then entered the front passenger seat of a white Mitsubishi, which departed towards a park in Castlereagh Street. 3. At this point, police stopped the vehicle; and as they approached, observed a small Coke bottle containing clear liquid sitting on top of McGregor's handbag. 4. McGregor admitted ownership of the bottle and its contents as GBL. She also admitted to having Xanax in her possession, the total weight of which was 1.1 grams but is not the subject of any charge in respect of this offender. 5. The bottle was seized and its contents identified as 113.5 grams of GBL. Sequence 22, supply a prohibited drug, more than or equal to small quantity, 1.75 grams methylamphetamine (27 July 2018) 1. At about 3.26pm on 27 July 2018, a customer using a mobile phone contacted the offender by text message. The text message conversation is recorded in the facts. 2. During the conversation, the offender agreed to supply the caller with a "half ball" or 1.75 grams, of methylamphetamine. Search warrant 1. At approximately 7.25am on 8 August 2018, a search warrant was executed at the offender's premises in Comber Street, Paddington. A housemate was then present who informed police that he had resided at the premises for three and a half years, and that the offender had moved in approximately four months earlier. 2. The housemate identified the offender's bedroom. In that bedroom, police located the offender's passport, bank card and Centrelink card, as well as mail in his name. A wallet was also located in the top drawer of that bedroom, containing the offender's birth certificate and various other forms of identification. 3. A search of the bedroom revealed numerous quantities of GBL, methylamphetamine and cannabis. A breakdown of the relevant items is as follows: Sequence 24, supply a prohibited drug, a commercial quantity, 1,326 grams of GBL (8 August 2018) Bedside table: 1. 1 x small, clear, resealable bag containing two plastic vials containing a total of 4 grams of gamma‑butyrolactone; 2. 2 x "Absolut" brand bottles of Vodka containing 166.9 grams of GBL; 3. 1 x clear, resealable bag containing two small plastic bottles containing 5.5 grams of GBL; 4. 1 x box containing a small plastic vial containing 4.2 grams of GBL; 5. 2 x small glass bottles branded "Bombay Sapphire". One of the bottles was empty; the other contained 38 grams of gamma‑butyrolactone; 6. 1 x small glass bottle in the shape of a skull containing 1 gram of gamma‑butyrolactone; 7. an unlocked safe containing a small, resealable plastic bag containing 26.09 grams of methylamphetamine. Wall shelf: 1. 1 x glass "Twenty Third Street Distillery" brand bottle containing 228.1 grams of GBL; 2. 4 x small glass "Grey Goose" brand bottles, collectively containing 4.1 grams of GBL; 3. 2 x plastic bottles and 5 x glass bottles, all of which contained varying amounts of GBL; the total amount contained in them was 692.4 grams of GBL; 4. 3 x small glass bottles, each containing a clear coloured liquid substance, being GBL; in total 170.1 grams. 1. In total, police found 1,326 grams of GBL within the bedroom of the offender. Sequence 25, supply a prohibited drug, more than indictable quantity and less than a commercial quantity, 84.67 grams methylamphetamine 1. I note that an indictable quantity of methylamphetamine is 5 grams and 3 grams is a deemable quantity. The amount was significantly in excess of the deemable quantity and also the indictable quantity. A search of the offender's bedroom revealed numerous quantities of methylamphetamine in various packages. In the unlocked safe and bedroom: 1. 1 x clear, resealable bag containing 26.09 grams of methylamphetamine; Bedside table: 1. 1 x box containing 4 x plastic containers which contained a total of 7.44 grams of methylamphetamine; 2. 1 x white circular shaped plastic container containing 19.04 grams of methylamphetamine; 3. 1 x clear, resealable bag containing a second clear, resealable bag containing 0.24 grams of methylamphetamine; 4. 1 x clear, resealable bag containing 0.02 grams of methylamphetamine; 5. 1 x clear, resealable bag containing 5.39 grams of methylamphetamine; 6. 2 x small, clear, resealable bags which contained 0.36 grams of methylamphetamine; and 7. 2 x clear, resealable bags containing 0.26 grams of methylamphetamine in total. 1. In total, police found 84.67 grams of methylamphetamine within the offender's bedroom. Sequence 26, supply a prohibited drug, 14.6 grams of cannabis leaf 1. Also located in the desk in the offender's bedroom were two, clear, resealable bags containing a total of 14.6 grams of cannabis leaf. Sequence 27, supply a prohibited drug, 7.62 grams of MDMA 1. I note that an indictable quantity is 1.25 grams and a deemable quantity is 0.75 grams. Desk: 1. (1 x clear, round container containing 6.85 grams of MDMA; and 2. 1 x clear, resealable bag containing open capsules. Bedside table: 1. 1 x clear, resealable plastic bag containing two tablets marked with a Rolls Royce logo, subsequently identified as being 0.41 grams of MDMA; and 2. 1 x clear, resealable bag containing two clear capsules, each containing MDMA in total of 0.27 grams; and 3. 1 x clear, resealable bag containing 0.09 grams of MDMA. 1. In total, police found 7.62 grams of MDMA in Muniak's bedroom. Sequence 37, possess a prohibited drug, 2.59 grams of ketamine Bedside table: 1. 1 x clear, resealable plastic bag containing 0.42 grams of ketamine; 2. 1 x small, plastic container containing 1.43 grams of ketamine; 3. 1 x small, resealable bag labelled "Blazemaster Kush" which contained 0.074 grams of ketamine. 1. In total, police found 2.59 grams of ketamine within the offender's bedroom. Sequence 38, possess a prohibited drug, 0.39 grams of Alprazolam 1. Also found within the bedside table was a resealable plastic bag containing one and a half tablets of Alprazolam, having a total weight of 0.39 grams. Sequence 29, knowingly deal with proceeds of crime, $3,710 1. Located within the offender's bedroom was $3,350 in Australian currency in $50 and $20 dominations. 2. Other indicia of supply located in the offender's bedroom included a large quantity of clear, resealable bags, scales, a handwritten drug ledger, identification in the name of "Joshua Coates" bearing a photo of Muniak and other documents in the name of "Harry Hilton". The offender's arrest 1. At 6.55pm on Wednesday 8 August 2018, the offender was observed by police exiting Rosebud Lane, Paddington, carrying a grey and white satchel bag. He entered the passenger seat of a black Volkswagen Golf. 2. Police approached the vehicle and arrested the offender. Before he was subjected to a search, the following conversation took place: "Constable Bell: You are under arrest for drug supply. While you're under arrest, I'm going to search you. Before I search you, do you have anything on you you would like to tell me about? Offender: Yeah, I have some Xannies in my coin pocket." Sequence 30, possess a prohibited drug, 0.57 grams Alprazolam 1. The offender admitted to being in possession of Xanax (0.57 grams of Alprazolam). Sequence 31, possess a prohibited drug, 0.99 grams methylamphetamine 1. Two brown packages containing clear, resealable bags of 0.99 grams of methylamphetamine were located in the offender's right pocket. When queried by police, the offender replied, "I forgot those were in there. I don't know. I've never seen them before". 2. Also found in the offender's possession was an Apple iPhone with a red case. When police dialled the number belonging to the offender, which they were aware of from the intercept, the iPhone rang. 3. The offender also had some $360 cash on him and identification in the name of "Harry Hyatt". 4. The offender admitted to owning the grey and white duffle bag. 5. The offender refused to participate in an electronically recorded interview, as was his right. Police played a lawfully recorded phone call to him and asked him to identify the voices. He identified a female voice as belonging to his mother. 6. As to the male voice in the recording, he replied, "I'm not sure". I note there is nothing contained in the facts as to whether the female voice was in fact his mother's or one of his customers'. 7. The offender was subject to forensic procedures and charged with the matters now before the Court. 8. It is clear in relation to each of the two rafts of offences that the offender was in the business of supplying prohibited drugs. It is also evident, in my view, from the materials located on each occasion, that the offender was significantly involved in the supply of prohibited drugs, and that he was also personally an individual who used prohibited drugs. As to the second raft of offending, both parties have agreed that they can be appropriately referred to as falling into the midrange of objective seriousness. I accept that agreed submission. 9. As I have previously noted, the offender had no offences prior to the first raft of offending. In the intervening period between that offending and the second or recent offending, it would appear to be reasonable to suggest that, having become a user of prohibited drugs and involved in their supply by the time of his first arrest, indicating a time at which he was approximately 31 years of age, he then fell off the rails. 10. In the period intervening before the second raft of offences, he had not only gone off the rails; he had gone over the cliff. He committed a number of offences, as referred to in his criminal history, commencing in March of 2016; not obeying a direction of police, driving a motor vehicle without carrying his licence, refusal or fail to provide a urine sample, driving under the influence of alcohol, stating a false name or home address and refusing or failing to submit to the taking of a blood sample; all of those offences occurring on the one occasion, and in respect of which he received either fines and/or periods of disqualification. 11. It is remarkable that someone who had managed to stay out of any trouble in his life up to the age of 31 then commenced what is a not insignificant history of offending. His next offences were also matters with which he was charged on 29 March 2016, being goods in personal custody suspected of being stolen, not a motor vehicle, being four counts, and one count of possess house breaking implements. 12. They were not dealt with at the same time as the previous motor vehicle offences, but some three months after the motor vehicle offences had been dealt with at the Downing Centre Local Court. He failed to appear and was convicted in his absence on 14 December 2016. He was also charged as a result, with an offence of failing to appear on 14 December 2016. 13. As to each of the four counts of goods in personal custody and possess house breaking implements, on 11 October 2018 at Central Local Court he received the benefit of s 10A, that being a conviction with no other penalty. In relation to the fail to appear, on 21 July 2017, he received a period of imprisonment for two months commencing on 20 March 2017 and expiring on 19 May 2017. 14. He had also been charged on 9 April 2016 with an offence of resist officer in the execution of duty, committed on 9 April 2016 and before the Downing Centre Local Court on 13 January 2017, in relation to which he was convicted in his absence and a warrant issued. The matter was again before the Court on 21 July 2017, when he was dealt with for resist officer in the execution of duty and also for failing to appear on the last occasion. In relation to each of those matters, he received a sentence of imprisonment of three months to date from 20 March 2017, those sentences of two months being concurrent with each other and also at least in part, with the sentence imposed on 21 July 2017. 15. He was also charged on 3 April 2017 with offences of shoplifting, deal with identity information to commit an indictable offence and goods in personal custody suspected of being stolen, not a motor vehicle. Those matters were also dealt with on 21 July 2017 at Central Local Court and he received a term of imprisonment of three months in relation to the shoplifting, 12 months' imprisonment with a non‑parole period of seven months in respect of the deal with identity information, the non‑parole period to conclude on 19 October 2017, when he was to be released subject to supervision. 16. In respect of the charge of goods in personal custody, he received, again, a sentence of three months, concurrent with the previously indicated three month terms of imprisonment. The New South Wales Department of Corrective Services report indicates that he was released on parole on 19 October 2017. The balance of the term of imprisonment ordered was accordingly five months. 17. He was further charged within the period of parole, on 12 January 2018, with offences said to have occurred between 23 October 2016 and 29 October 2016, being two charges of dishonestly obtaining a financial advantage by deception. He was charged with those offences on 12 January 2018 and was due to appear on 4 May 2018 at the Downing Centre Local Court but failed to appear and was convicted in his absence. 18. The matters were back before the Central Local Court on 11 October 2018 when, in each case, he was sentenced to a term of imprisonment of 14 days, commencing from 8 August 2018 and expiring on 21 August 2018. As previously indicated, it is remarkable that someone who managed to get to approximately the age of 31 without having come to the notice of the authorities at all; and having committed the first raft of offences while on bail in respect of them committed a second series of more significant similar offences. 19. Offences committed while on any form of conditional release must be regarded seriously. It is a significant aggravating factor that persons given the benefit of conditional release continue to commit offences while subject to the conditions of that release. Significantly less benefit can be given to an offender because of the need to reflect that aggravating circumstance. It also significantly impacts on issues such as remorse, contrition and the prospect of rehabilitation. 20. I have dealt with the matters on the Form 1's in the same manner as the parties have; that is, I have not specifically referred to their objective seriousness. I note, however, that what is indicated by each of the rafts of offending, that the offender, in effect, had available to him a smorgasbord of prohibited drugs, the equipment to distribute them in smaller quantities than he possessed and the evidence indicates that he did so. 21. As I have previously stated, it indicates that he was substantially involved in the supply or prohibited drugs. It is clear from the materials found on each of the occasions, in my view, that the offender was both a user and supplier: that is, that there was an element of need rather than outright greed. In particular, I notice that on one occasion, he was prepared to supply prohibited drugs to one of his customers for less than it was actually costing him to purchase them; perhaps a matter of maintaining good faith with the customer but certainly not a deal from which he anticipated profiting. 22. As to subjective matters, the offender has not given evidence on sentence. There is no material before the Court other than his criminal history, which I have already referred to in detail; and the New South Wales Department of Corrective Services Convictions, Sentence and Appeals Report and a Sentencing Assessment Report, dated 8 January 2019 under the hand of K. Menemenious, which was provided in respect of the first raft of offending. That report takes account only of the first raft of offending and the offender's history up to the date of the report. 23. Exhibit 2 contains a more recent history, including the New South Wales Department of Corrective Services report, the Sentencing Assessment Report referring to him as having no issues while in custody, however his more recent history indicates that he was the subject of discipline in relation to possession of a drug on 30 June 2019, and also failing a prescribed drug test on 19 May 2019, so while in custody, he has, unfortunately, been involved on two occasions with either prohibited or restricted drugs, which does not at all go well in respect of the prospect of rehabilitation. Subjective matters are drawn from that material. 24. The offender is said to have limited support in Sydney. His mother resides in Perth, Western Australia. He has regular telephone contact with her and she has indicated to the pre‑sentence officer, at least at the time of the report in respect of his first offending, her continuing support for him. 25. He apparently completed the Higher School Certificate and studied hotel management through TAFE but ceased his studies due to fulltime work commitments. He apparently had maintained fulltime employment in the retail management area until 2014, when he was terminated due to his poor attendance, which he attributed to what I understand, although it is not clear from the report, was his increased work time. 26. At the time of his first offending, he was unemployed and in receipt of Centrelink benefits. He is said to have had a pro social lifestyle prior to 2014 and prior to that time, did not use prohibited drugs. At the end of 2014, he claimed to have started experimenting with drugs, which escalated from a recreational level to daily use by 2016. 27. In my view, his criminal history supports that assertion as being truthful. He is said, since incarceration, to have reflected on his drug use and its adverse impact on his employment, health and the relationship with his family; and expressed a desire to participate in substance abuse intervention. 28. In relation to the drugs located at the premises on the first occasion, he minimised his part by stating, "It wasn't just me" residing at the property. He stated that as he was residing at a hotel where drugs were freely available, it became "normal". His social circle prior to going into custody was people who used drugs and he was influenced by them and I have no doubt, considering the nature of his offending, that he influenced them just as much. 29. He said that there was a change in his social circle at the end of 2015/16, when his use of 'ice ', that is methylamphetamine, and GBL was triggered and he was then using some $250 of ice and $50 of GBL per week. I note that in the intervening period between the offences while released on parole for the offences of deal with identity information to commit an indictable offence and dishonestly obtaining property by deception, he was subject to supervision on parole, which is said to have been satisfactory and that he engaged with drug and alcohol counselling on a weekly basis during that time. 30. It is a shame that that did not have more effect, because he returned to supplying prohibited drugs in June of 2018, having been released on parole on 19 October 2017; and subject then to parole supervision for a period of five months. The offender is now some 33 years of age and in sentencing him, I will take into account what I have previously referred to; that is, a 5% discount in relation to the first raft of offending and a 25% discount in respect of the more recent offending. 31. I also take into account that he had no previous criminal history prior to the first raft of offending and that in respect of his offending in the intervening period, from that offending to date, there is in fact only the commission of a single drug related offence, an offence I previously failed to refer to, being an offence committed on 20 March 2017 of possess prohibited drug, dealt with at Central Local Court on 21 July 2017, in respect of which he received a s 10A conviction with no other penalty. 32. While he has previous criminal history, that is history prior to the second raft of offences, I do not regard the offences as significantly impacting on the sentence to be imposed in respect of the second raft of offences, although it does mean that he cannot be regarded as blemish-free as he must be in relation to the first raft of offences. 33. As I have previously indicated, having fallen off the rails in respect of the first raft of offences, he appears, in the meantime, to have, as I have previously expressed, "gone over the cliff" of criminal offending subsequent to his first arrest. 34. As to remorse and contrition, the entry of a plea of guilty is not of itself of necessity, a reflection of remorse or contrition. The offender did not give evidence and the value of the Sentence Assessment Report provided in respect of the first offending is diminished by his record since, including the subsequent offending that I must deal with. 35. I have no doubt that now, facing the Court in relation to two separate rafts of offending, the offender sincerely regrets the position that he is in. The fact that he committed the second raft of offending significantly diminishes the extent to which the Court can find any genuine remorse or contrition in respect of his offending. I will, however, give him the benefit of the doubt on that and accept that, in part, his plea of guilty to the second raft of offending and his acknowledgement that he has a drug problem is indicating some degree of remorse and contrition for his past conduct. 36. As to the prospect of rehabilitation, in the circumstances of the continued offending, the prospect of rehabilitation must be regarded as very guarded. His previous history of no offending up to the age of approximately 31 does indicate that should he be able to get his drug addiction under control, there is at least some, in those circumstances, reasonable prospect of rehabilitation, but that prospect will not arise until such time as he has completely removed himself from the use of prohibited drugs; and I note that he has been unable to do that, even while in custody. Hence, my observation that the prospect of rehabilitation must be regarded as very guarded. 37. I intend in this matter to impose an aggregate sentence. Accordingly, I am required to indicate indicative sentences in relation to each of the matters that have been referred to. Accordingly, in relation to the first offence committed on 1 February 2016, that is, supply 23.54 grams of methylamphetamine, allowing for all of the matters that I have referred to, including the 5% utility discount, the indicative sentence is a term of imprisonment of one and a half years. 38. In relation to the second offence of supply 11.79 grams of MDMA and also taking into account the Form 1 offence of supplying 67.3 grams of GBL, the indicative sentence is again, one and a half years, that is 18 months. I note that the drug manufacturing apparatus was not the subject of charge. It was, however, still relevant to determining the objective seriousness of the offences, as indicating his involvement in supply. 39. In relation to the second raft of offending, or more recent offences, the indicative sentences are as follows and I simply note at the start that in relation to each of them, I have taken into account the 25% utility discount as well as all other matters referred to. 40. As to the supply of a prohibited drug, being 113.5 grams of GBL, the indicative sentence is two years. 41. As to the supply of a commercial quantity of GBL, being 1,326 grams, the indicative sentence is four years' imprisonment. As that type of offence has a standard non‑parole period, I am required to specify what the non‑parole period would have been if I had imposed that sentence, so I specify a non‑parole period of two and a half years. and in relation to that offence, that is supply 1,326 grams GBL, I take into account the matters on the Form 1, being sequences 3, 5, 16 and 17, each relating to GBL; sequences 10 and 26 relating to cannabis and sequence 37 relating to ketamine. 42. In relation to the third offence in the second raft, supply a prohibited drug, 84.67 grams of methylamphetamine, also taking into account the matters on the Form 1, being sequences 4, 6, 22 and 31, each being methylamphetamine; sequence 9, LSD; sequence 27, MDMA; and sequences 30 and 38 being Alprazolam, the indicative sentence is three and a half years. 43. As to the final offence, being the proceeds of crime in the sum of $3,710, the indicative sentence is one year of imprisonment. 44. Taking all of those matters into account, as well as the need for both specific and general deterrence in relation to matters involving drug supply, as well as both accumulation and concurrency, and of course, as required by Pearce, totality; the sentence will be a non‑parole period of four years with a balance of term of two years, having found special circumstances. 45. I will allow a backdate consisting of the two days in custody between 1 February 2016 and 2 February 2016 and a further 88 days for the period of custody, being bail refused in relation to this matter between 10 April 2016 and 6 July 2016. I will allow no time in relation to the period between 20 March 2017 and 19 October 2017, when he was imprisoned in relation to entirely unrelated offences; and I will allow, accordingly, also the period of time in custody since he was first imprisoned in relation to the second raft of offences, being 9 August 2018. 46. For your benefit, Madam Crown, Ms Quinones, I will backdate the sentence by 90 days from 22 August 2018. The non‑parole period, as I have previously indicated, having found special circumstances in relation to the accused in the belief that he will need a longer period of supervision while on parole in order to assist him in addressing his prohibited drug use; and because this is his first most significant period of custody, I have reduced the non‑parole period from the statutory relationship by six months to provide a full two years of parole. 47. Accordingly, the sentence, backdated by 90 days from the commencement of 22 August 2018, commences on 24 May 2018. He will be first eligible for parole on 23 May 2022. The balance of term of two years will expire on 23 May 2024. 48. Mr Muniak, I hope you understand, and I take it you understand because you have spent some time in custody now and you have previously been on parole, if you breach the parole, you will inevitably be returned to prison and serve the remainder of whatever time is left of the balance of term. 49. You managed to survive without committing any criminal offences up to the age of 31. You have gone completely over the cliff in the meantime by committing this raft of offences and all of those offences in the time between the first offending and the second raft of offences. You will find that if you are, in the future, detected selling prohibited drugs or indeed, even simply using prohibited drugs, you will inevitably end up with further prison sentences, so you really need to address your drug problem, taking advantage of any course you can while in custody to do so. Otherwise, you are just going to become one of those statistics that can be referred to as part of the revolving door of the prison cell. You will be back in and out of custody for a significant part of your adult life before you finally, if you do, manage to address your problem. 50. You must address it now, not in the future. I know that gaol is a depressing place to be and it is not easy to reside there. I know that drugs are, unfortunately, available without too much difficulty while in custody, but you will find that if you keep showing up with positive readings or failure of drug tests while in custody, you will not get parole when you are first eligible for it. It is not a matter not for me to determine when you are released on parole, but for the authorities. I have given you the earliest possible date you will be released, which is 23 May 2022, but that will not happen unless you make the effort while you are in custody in the meantime, to ensure they want to release you on that date, so please, do so. ********** 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 May 2020