Director of Public Prosecutions v Mikulic

[2020] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation:

DPP v Mikulic [2020] NSWLC 1

Hearing dates:

18 March and 22 April 2020

Date of orders:

22 April 2020

Decision date:

18 March 2020

Jurisdiction:

Criminal

Before:

Judge G Henson AM, Chief Magistrate

Decision:

See [45]-[51].

Catchwords:

SENTENCING – particular offences – supply prohibited drug – guilty plea prior to committal – statutory sentencing discount for guilty plea – mid-range objective seriousness- impact of prior criminal record as aggravating factor – deprived of leniency on sentence - relevant to prospects of rehabilitation – drug addiction – participation in treatment and rehabilitation programs – no other alternative than sentence of imprisonment – aggregate sentence – to be served by way of intensive correction order

Legislation Cited:

Drug Misuse and Trafficking Act 1985 s 25, Sch 1

Schedule 1 of the DMT Act

Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 21A(2)(d), 25D(2)(a)

Cases Cited:

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Imbornone v R [2017] NSWCCA 144

Imbornone v R [2017] NSWCCA Parente v R [2017] NSWCCA 284

R v Fangaloka [2019] NSWCCA 173

R v Henry (1999) 46 NSWLR 346

R v McNaughton (2006) 66 NSWLR 566

R v Thomson and Houlten (2000) 115 A Crim R 104; [2000] NSWCCA 309

R v Zamagias [2002] NSWCCA 17

Veen v R (No.2) (1998) 164 CLR 465; [1988] HCA 14

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Zwam v R [2017] NSWCCA 127

Category:

Sentence

Parties:

Director Public Prosecutions (NSW)
Ante Mikulic

Representation:

Mr George, for the prosecution
Mr Tabchouri, for the defendant

File Number(s):

2019/00055317

Publication restriction:

Nil

Judgment

1. The defendant is before the court to be sentenced in relation to two counts of Supply Prohibited Drug contrary to the provisions of section 25 of the Drug Misuse and Trafficking Act 1985 (the DMT Act). In addition a charge of possess prohibited drug contrary to section 23(1)(c) of that Act has been placed on a Form 1 pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). This procedure requires the Court to take into account the additional offence when sentencing for those offences which are before the court.

2. The penalty for each of the offences of Supply Prohibited Drug is imprisonment for 15 years and or a fine of 2,000 penalty units when prosecuted on indictment. When prosecuted summarily the penalty is 2 years imprisonment and/or a monetary penalty of 100 penalty units. The penalty for the summary offence placed on the Form 1 is 2 years imprisonment and/or 20 penalty units.

3. The proceedings before the Court were commenced within the Early Appropriate Guilty Plea legislative framework outlined in Part 2 of Chapter 3 of the Criminal Procedure Act. Section 25D(2)(a) of the CSP Act mandates a discount of 25% if a guilty plea is entered during the committal proceedings for the offence. The pleas entered in these proceedings will accordingly, attract a statutory discount of 25% on the sentence that might otherwise be imposed. The Court notes that this discount is a statutory discount and not a discount for the utilitarian value of the plea such as would arise in the ordinary course of proceedings and be considered in line with the authority of R v Thomson and Houlten (2000) 115 A Crim R 104; [2000] NSWCCA 309. Despite the difference in origin the effect is in parallel.

Facts

4. On the afternoon of 14 February 2019 a person by the name of Gillett travelled to Westfield shopping centre. There he met with the defendant. Both persons sat in the defendant’s motor vehicle for a short period. The defendant supplied the person Gillett with 14 grams of heroin. The quantity of the drug supplied is within the indictable quantity under Schedule 1 of the DMT Act.

5. After Gillett left the defendant’s presence he was stopped by police, the drugs detected in a satchel bag he was carrying resulting in his arrest and conveyance to the Waverley Police Station for charging. The basis upon which the drugs changed hands between the defendant and Gillett is not set out in the facts. Paragraph 11 of the facts asserts that Gillet had plans to move into a distribution role as a mid-level dealer in heroin.

6. Five days later, on 19 February 2019, the defendant was arrested. He was taken to his home unit which was searched by police. During the search police located $23,000 in cash. The details regarding the money are set out in paragraph 13 of the facts. No charges relate to this quantity of money. Absent any cogent reason for so doing and following discourse between the bench and Mr George of the DPP the Court indicated that it was not prepared to take paragraph 13 of the facts into account in a prejudicial sense. Paragraph 13 cannot be removed from the agreed facts however the only view the court can have of them is one that is neutral.

7. During the search police found a large cannabis plant. The defendant said it was for his own use and had been grown from seed. This charge is the matter placed on the Form 1. Lastly the defendant was also found in possession of 16 containers each containing 50 tablets of Alprazolam. Alprazolam is a prohibited drug under the DMT Act unless lawfully prescribed. The defendant accepted ownership of the drugs and conceded they had not been prescribed to him by a medical practitioner. The combined weight of the drugs was 160 grams. This is within the indictable quantity range. The manner in which the 16 discrete containers were populated with identical quantities of this drug gives rise to the inescapable inference that there was an intention to sell the drugs into the community.

8. Although the facts presented by the DPP in these proceedings give the appearance of being somewhat sanitized there is sufficient in them to assess the moral culpability of the defendant as being within the mid-range. What is clear in relation to each of the charges of supplying a prohibited drug is the reality that the volume of heroin supplied creates the potential for a lethal dose, the first steps towards addiction and, where it is being on sold as is stated in the agreed facts, the ongoing engagement of someone who wants to use the sale of drugs for money to compound the potential impact by returning to their supplier for drugs to repeat the process. It is also the case that many caught in the web of addiction commit criminal offences within the community to support their acquired habit.

9. The moral culpability of that type of criminal offending behaviour should never be treated as minor and in these proceedings it is not. I find the moral culpability of the defendant to be at the mid-range tempered only by the quantity of drugs involved in terms of the potential field of damage that may arise from wider distribution.

10. The defendant is an acknowledged drug addict. He cannot say he is not aware of the potential ramifications of his conduct. The sentencing proceedings conducted in relation to his 2004 sentence would undoubtedly have made the consequences of drug supply well known to him. The Sentence Assessment Report asserts that the defendant “acknowledged that his offending behaviour impacts the wider community in a negative way”. That may be. It may also be the case that had he not been caught he would still be engaged in the activity of supply. The 16 containers of Alprazolam were obviously intended for future sale. The observations in relation to the supply of heroin apply similarly to the deemed supply of Alprazolam. I also regard the level of moral culpability in relation to this offence as being at the mid-range.

Antecedents

11. The defendant has a criminal record. He first came into contact with the criminal justice system in 1993 for serious traffic offences. In 1995 he served a period of imprisonment for a serious traffic offence and a number of offences of dishonesty. Upon his release he regularly committed a series of minor offences until 1998 when he was once again sentenced to a number of sentences of imprisonment, albeit of short duration. From 2000 to 2004 he managed to avoid further court activity and managed to keep the terms of a 2 year bond imposed for a major traffic offence in 2005.

12. His disengagement with crime however was short lived. In 2009 he was charged with a supply prohibited drug offence and a firearms offence. In February 2010 he was given a minimum period of imprisonment by the District Court of 2 years 6 months against a head sentence of 4 years 9 months for the drug supply charge. Upon release to parole the defendant did not again come under notice formally until these charges.

13. The impact of his prior record is that it is an aggravating factor under section 21A(2)(d) of the CSP Act. As was said by the High Court in Veen v R (No.2) (1998) 164 CLR 465 at [14]; [1988] HCA 14 prior record is relevant:

“To show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”.

14. This does not mean that the offender is to be punished again for the earlier matters on his record. To do so would be to act contrary to principle. It does mean that by reason of his prior history of offending, particularly in relation to his conviction in the District Court in 2010 for drug supply, that the defendant is deprived of leniency and that those purposes of sentencing set out in section 3A of the CSP Act which may be characterised as “punishment and protective” considerations receive greater prominence.

15. As was said in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32]:

“A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life”.

16. In R v McNaughton (2006) 66 NSWLR 566 the court expressed the view that it is not open for a court to use prior convictions to determine the upper boundary of a proportionate sentence. The sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances.

17. Expressed in another way it is important where there is a relevant prior criminal record to understand the practical effect of authority. In a common sense appreciation being deprived of leniency simply means the defendant should not receive a too lenient sentence that is inconsistent with the objective seriousness of the offence before the court. It does not mean he should be punished more severely despite the assessment of the objective seriousness of the offence because he has a prior record. It is “deprived of leniency” (emphasis added) not more severely punished that is the operative effect.

18. To recapitulate the decision in Veen (No. 2) relevant prior record affects leniency because authority points the sentencing court in the direction of retribution, deterrence and protection of the community as potentially assuming greater importance within the instinctive synthesis than other purposes of sentencing set out in section 3A.

19. A prior record is also relevant in relation to the prospects of rehabilitation. Where appropriate it may move the court’s assessment of the prospects of rehabilitation from good, in the case of a first offender, to guarded in the case of a repeat offender. This is particularly so where the re offending is of the same type as in the earlier history.

20. The prospect of rehabilitation is not to be measured solely by reference to past history. At best it is a guide but one that can be affected in both a positive way by the subsequent efforts by the defendant to engage in positive rehabilitation, particularly if that engagement goes directly to an obvious factor of causation, such as addiction to prohibited drugs. The corollary is that reoffending between the commission of the offence before the court and the date of sentence will operate negatively in the assessment of his prospects of rehabilitation. I will return to this aspect of consideration later in these remarks.

Subjective factors and other considerations

21. The defendant comes before the court at the age of 44. According to the Sentence Assessment Report he currently resides in stable accommodation with his sister and her family. As at the date of the report (11 February 2020) he was unemployed. It is said he has an offer of employment as a truck driver but such offer is on hold pending the outcome of these proceedings.

22. Mr Mikulic told the Community Corrections officer he committed the offences to financially support his own drug use. He admits that he has been a long term drug addict. The report also suggests he considers the supply of drugs within the community to have less impact than an offence such as stealing. Accepting this statement was made to the Community Corrections officer it is an extraordinarily ignorant view and one that seeks to trivialise the enormity of his conduct. It is also a statement that suggests that his letter of apology for his conduct, which is dated 5 days later than the Sentence Assessment Report, is to be treated with a measure of circumspection. The expression of shame, or remorse by the defendant was not subject to testing. Absent a more persuasive rendering the Court should approach the issue of remorse and contrition in a manner similar to that identified in Zwam v R [2017] NSWCCA 127 at [89]. Accordingly the weight to be given to the self-serving statements in his letter of apology and expressed within the psychological report is limited.

23. The report of psychologist Chafic Awit details the defendant’s history. It reiterates his addiction to drugs and speaks about his attempts to wean himself off them. Mr Awit diagnoses the defendant as suffering from Attention Deficit Hyperactivity Disorder, Major Depressive Disorder and Substance Abuse Disorder. The report states the defendant commenced the use of heroin in 1994. Given the history of his convictions for drug possession this appears to be a reliable timeline. It describes the nature of his addiction at the time of offending as the combined use of heroin and Xanax. Xanax is another name for Alprazolam. The history is consistent with the nature of the offending and the purpose behind it.

24. Counsel for the defendant in written submissions suggests that based on the defendant’s underlying conditions and the opinion of Mr Awit that there is a psychological nexus between his underlying condition and the offences before the court that the defendant would not be an appropriate vehicle for general deterrence. With respect to Mr Awit his views are largely informed by information provided to him by the person with the most to gain from providing it and from the position of a recidivist offender who, better than most, knows exactly what is involved in the supply of prohibited drugs by reason of his previous participation in sentencing proceedings before the District Court.

25. If Mr Awit is correct then it is open to speculation to the effect that it is only a matter of time before the defendant returns to the type of conduct for which he is currently before the Court. Such a view would impact on the prospects for rehabilitation. In the decision of Imbornone v R [2017] NSWCCA 144 the court noted, inter alia at [57]:

“Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or in assertions contained in letters written by an offender and tendered to the Court, should all be treated with considerable circumspection. Such evidence is untested and be deserving of little or no weight”.

26. It is a constant theme in submissions from defence advocates that the existence of certain psychological conditions is somehow the cause of criminal offending. On occasions that may be so although the degree to which the existence of some conditions has a causal nexus to recidivist conduct remains somewhat nebulous. The defendant suffers from a major depressive condition. He is not unique within society in that regard yet the wider community are not engaged in drug abuse and the selling of drugs. The existence of this condition ought to be viewed objectively in the broader context of society.

27. He is said to suffer from Attention Deficit Disorder which leads to hyperactivity and impulsivity yet he can remain out of trouble for a period of years to the point that defence counsel makes the submission that this demonstrates good prospects of rehabilitation. He suffers from Substance Abuse Disorder. This seems to be another term for drug addiction. Again this is a condition that is suggested to explain his conduct and be mitigating in nature yet his engagement in rehabilitation programs since his release from bail custody is said to give confidence in his prospects of rehabilitation.

28. It is noteworthy to repeat what Spigelman CJ said from time to time in R v Henry (1999) 46 NSWLR 346 at [197]-[198], [202] :

“Drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction…. Persons who choose a course of addiction must be treated as choosing its consequences…

There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability…”.

29. As was said in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177] a mental condition can have the effect of reducing a person’s moral culpability. This is so where the mental condition contributes to the commission of the offence in a material way.

30. This may be so however the Court notes that one of the mental conditions assigned to the defendant by Mr Awit – Substance Abuse Disorder - is the product of the defendant’s choices in life. As Spigelman CJ said further in Henry at [201] “[t]he decision to persist with addiction, rather than to seek assistance, is also a choice.” Against that observation it is ironic that the defendant now seeks to rely on a choice of abstinence for a period of time leading up to sentence when that choice was available to him following his release from prison on parole in 2012.

31. The community would be entitled to ask why did he wait until back in custody on these charges in 2019 to begin the journey towards rehabilitation. Was it because he knew from prior experience that participation in rehabilitation improved his chances of a more lenient outcome or was it a genuine attempt at this stage in his life to do something to address his ongoing addiction.

32. The certificates from participation in courses in custody whilst bail refused suggest that whatever the motivation he has at least engaged in and remained committed to participation in drug rehabilitation. His custody history shows two different outcomes. The lack of breaches in prison discipline whilst bail refused on these charges demonstrate perhaps a different attitude to that in relation to his previous sentence for drug supply and is encouraging. Documentation from rehabilitation agencies suggest his commitment continued after release to bail. The drug screening document dated 11 February 2020 showing the absence of certain illicit substances in urine tests lends credence to his suggestion that he has changed in his attitude.

33. One of the difficulties courts face with repeat offenders is that the history given to psychologists comes from them, the knowledge from previous engagement with the criminal justice system creates an insight as to just what might be convincing and the short period between charge and sentence in the Local Court means the need to show a demonstrated change is compressed into a much shorter period than would be the case had the matters proceeded to the District Court.

34. In many instances the Court is thus invited to take a risk at the potential expense of the community. When subsequent good behaviour and rehabilitation is the outcome then the risk is clearly one that has been justified. When the commitment to rehabilitation is no more than a charade or the defendant fails to commit to rehabilitation in the longer term then further offending creates further victims and in the case of the defendant’s predilection to engage in the abuse and distribution of prohibited drugs, with potentially tragic consequences for the community.

29. This then is the background to the balancing act the court is required to undertake. Objectively a sentence of imprisonment protects the community, punishes the offender and contributes to general deterrence. However any sentence of imprisonment is finite in its terms and is a blunt instrument where the recipient of such an outcome is someone such as the offender who is likely inured to the detriments of imprisonment by reason of his lengthy incarceration in 2010. This is not to say that a further period of imprisonment is without merit. It would meet a number of the purposes of sentencing set out in section 3A of the CSP Act so far as denunciation and retribution are concerned. It would make the offender accountable for his actions and may act as a deterrent of indeterminate effect to reoffending.

30. The Court notes the offender spent 92 days in custody on remand before being released on strict bail. The conditions attached to the grant of bail amount to a form of quasi-custody for which some recognition should be afforded in the form of an acknowledgment that it is, to a degree, a form of pre-sentence punishment. Importantly there is nothing before the Court to suggest that he has been anything other than scrupulous in his adherence to the conditions of bail. Again it is noted his conduct in custody was similarly misconduct free unlike his previous period of incarceration.

31. Counsel for the defendant concedes the threshold under section 5 of the CSP Act has been crossed. In other words it is acknowledged the level of moral culpability associated with the commission, together with the degree of potential harm to the community and the absence of the opportunity of significant leniency by reason of his prior antecedents, all point towards a sentence of imprisonment. Even allowing for the observations of the Court in Parente v R [2017] NSWCCA 284, the Court agrees. The seriousness of the offending and the context can lead to no other reasonable outcome.

32. Reaching a conclusion that there is no other alternative in sentencing for these three matters, including taking into account the matter on the Form 1, takes the Court to the three step process identified in R v Zamagias [2002] NSWCCA 17 and R v Fangaloka [2019] NSWCCA 173 at [44]. As the Court observed the first step is to determine whether the threshold under section 5 of the CSP Act is crossed. The second step is to determine the length of any sentence of imprisonment consequently imposed. The third step is to determine the manner in which such sentence is to be imposed. The last step recognizes the changes that have taken place in terms of sentences of imprisonment over the years.

33. Under the current provisions of the CSP Act a sentence of imprisonment may be imposed in two forms. The first and most onerous is by way of full time incarceration. The alternate is by way of an Intensive Correction Order. An Intensive Correction Order is a sentence of imprisonment. It is available as an option in the Local Court where the sentence of imprisonment is less than 2 years for a single offence or less than 3 years where an aggregate sentence is being considered.

34. An aggregate sentence is appropriate in the matters currently before the Court. Having regard to the foregoing and assessing the level of criminality in each of the supply matters as being comparable, after balancing the aggravating and mitigating factors and the utilitarian value of the plea the indicative sentence on each is a sentence of imprisonment of 15 months. After considering the issues of totality and proportionality an appropriate aggregate sentence (including taking the matter on the Form 1 into account) is one of 20 months imprisonment.

35. The defendant is convicted on those matters before the Court. He is sentenced to an aggregate sentence of 20 months imprisonment.

36. Turning to the third stage identified in Zamagias the Court at this point must consider section 66(1) of the CSP Act. Section 66(1) requires the court to consider the issue of community safety when weighing in the balance a decision to order a sentence of imprisonment be served by way of an Intensive Correction Order. As is noted in the Sentencing Bench Book:

“The court must assess whether making the order or serving the sentence by way of full time detention is more likely to address the offender’s risk of reoffending. This requirement recognizes community safety is not achieved simply by incarcerating an offender but that incarceration may have the opposite effect; the concept of community safety is linked with considerations of rehabilitation, which is more likely to occur with supervision and access to programs in the community.”

43. Were it not for the period of pre-sentence custody, which addresses in part the issue of punishment, and in relation to which any sentence of full time detention would be obliged to recognize in terms of the commencement date of the sentence, were it not for the limited but short lived period of good conduct, successful participation in rehabilitation programmes, negative drug test and the possible identification of underlying psychological conditions that may previously have gone unidentified the Court would not be able to form a positive opinion to the effect that the community could be adequately protected and the offender adequately punished outside full time detention.

44. On balance however, after consideration of those factors I have come to the view that although borderline, it is appropriate consideration be given to the sentence being served by way of an Intensive Corrections Order. However there needs to be a measure of punishment reflected in such an order. For that reason the offender is to be assessed as to his suitability for Home Detention. For the purpose of that assessment I identify a period of 10 months as representing the period proposed. The proceedings will need to be adjourned to obtain an assessment from Community Corrections as to his suitability for this part of the proposed sentencing outcome.

Formal orders by way of sentence

45. The defendant is convicted on each charge. He is sentenced by way of an aggregate sentence to imprisonment for 20 months.

46. The sentence is to be served by way of an intensive correction order in the community for a period of 20 months. Ten months of that period is to be served by way of home detention.

47. The standard conditions required pursuant to section 73 of the CSP Act are to apply.

48. The Court emphasises that the defendant is to be subject to supervision by a community corrections officer for the period of the order and is to accept the supervision and direction of an officer of that service. He is to report to the office of Community Corrections at Penrith within 7 days.

49. The offender is to abstain from the use of prohibited drugs and any drug other than that lawfully prescribed by a medical practitioner.

50. The offender is to engage in such drug rehabilitation programs as considered appropriate by Community Corrections.

51. He is to be subject to random urinalysis or other drug testing considered appropriate by Community Corrections.

Judge G Henson AM

Chief Magistrate

Downing Centre Local Court

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Decision last updated: 08 July 2020