R v Jon Boicuic - [2004] NSWCCA 146

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v JON BOICUIC [2004] NSWCCA 146

FILE NUMBER(S):
60059/04

HEARING DATE(S): 6 May 2004

JUDGMENT DATE: 12/05/2004

PARTIES:
REGINA
(Respondent)

JON BOICUIC
(Applicant)

JUDGMENT OF: McColl JA Levine J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0211

LOWER COURT JUDICIAL OFFICER: Urquhart J

COUNSEL:
G I O Rowling
(Respondent)

P Hamill
(Applicant)

SOLICITORS:
S Kavanagh
(Respondent)

S E O'Connor
(Applicant)

CATCHWORDS:

LEGISLATION CITED:
s6(3) Criminal Appeal Act 1912

DECISION:
1. Leave to appeal granted.
2. Appeal allowed.
3. Sentences imposed in the District Court quashed and in lieu the applicant be sentenced in relation to counts 1 and 2 to a term of imprisonment of 4 years to commence on 8 October 2002 and to expire on 7 October 2006 and that a non-parole period be fixed at 2 years to date from 8 October 2002 and to expire on 7 October 2004.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60059 OF 2004
McCOLL JA
LEVINE J
HIDDEN J
Wednesday 12 May 2004

REGINA v JON BOICUIC

Judgment

McCOLL JA: I agree with Levine J.
LEVINE J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court by his Honour Judge Urquhart QC on August 2003.
On 10 June 2003 the applicant pleaded guilty to two counts of supplying heroin contrary to s25(1) Drug Misuse and Trafficking Act 1985. Each offence occurred on 8 October 2002: the first count relating to a supply “at Sydney” and the second to a supply “at Condell Park”. The case was adjourned until 1 August 2003 for sentence.
The maximum penalty for each of the offences on the indictment is 15 years imprisonment. In addition, the applicant signed a “Form 1” constituting a list of 3 offences to be taken into account pursuant to s32 Crimes (Sentencing Procedure) Act 1999. These offences were “goods in custody” relating to the applicant’s possession at the time of his arrest of a mobile telephone, a New South Wales drivers license in someone else’s name and $310 in cash.
The applicant had been in custody, bail refused, since the date of his arrest on 8 October 2002.
In respect of each charge his Honour imposed a total sentence of 4 years and 6 months to date from 8 October 2002. His Honour fixed a non-parole period of 2 years and 9 months which will expire on 7 July 2005. His Honour ordered that the sentences be served concurrently.
The facts were not in dispute as they were set out in the document tendered before the sentencing Judge.
It appears that in the early afternoon of 8 October 2002 police observed the applicant engaged in “suspicious conversation” in Hyde Park. He was arrested, searched, and found to be in possession of a quantity (0.13g) of heroin in rock form, a quantity (27.4g) of heroin in powder form with a purity of 11 per cent, and a quantity of heroin (0.45g) in powder form. That evening the police executed a search warrant and located a quantity of heroin (3.21g) in rock form packaged in 8 small bags and a quantity (23.9g) of powder containing an amount of brown coloured rock substance. That powder was found to contain heroin with a purity of less than 1 per cent. The applicant was interviewed, admitted the drugs were his, and gave an explanation as to how he came by them. He said he was a heavy user and did not admit to supply. The subjective features: the applicant’s criminal history indicates his having been born on 29 October 1959 and as having had a criminal history including previous offences of supplying drugs. His Honour had the benefit of a psychologist’s report (exhibit 1) that set out the applicant’s personal history. He had come from Romania in 1984 and worked in various jobs to send money back to his children still in that country. He did use drugs, in particular heroin, but felt he could stop until the year 2000 when he became “hooked” during a recovery period following a motor accident. He had not used drugs since being placed in custody upon his arrest.
There is one ground of appeal and it is that the learned sentencing Judge erred in his approach to the applicant’s plea of guilty, and in particular erred in failing to reduce or discount the sentence in acknowledgment of the utilitarian value of the plea.
As Mr Hamill pointed out, his Honour’s remarks on sentence made no reference to the plea of guilty until page 6. In other words, his Honour did not indicate at the beginning of his reasons that the applicant stood for sentence having pleaded guilty. This was suggested to be, at the very least, unusual. Noting really turns on that but it was a remark legitimately available for Mr Hamill to make in the context of his principal submissions.
His Honour said the following in the course of his remarks on sentence in relation to the plea (ROS 6-7):
“During the course of submissions it was submitted that I would take into account the offender’s plea of guilty. In this regard it is to be noted that he pleaded guilty on arraignment. It was submitted that I would have regard to some difficulties, or so it was submitted, which the offender had in understanding the nature of the charges as preferred against him because of his own use of that particular drug as well as the possession which he had for the purposes of supply. I however do not accept that submission”.
That was all his Honour said.
In the course of submissions Mr Hamill referred to some well-known observations of Spigelman CJ in R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383. Without reproducing them I note in particular the references to paras [22]-[23], paras [38], [52]–[53], [126] and [160]. The purpose of these references was to make a submission founded upon that component of the guideline judgment that is concerned with “transparency”, as it was put. It must be known to the offender, the Crown and the community (especially the person sitting in the back of the Court, as Mr Hamill put it) that a benefit is being given to the offender for having pleaded guilty. Here, it is submitted, the language used by his Honour the sentencing Judge could only be understood as declining to give the applicant the benefit, or any benefit at all, of his having pleaded guilty. Arguably, his Honour could be understood as saying that he did not accept the submission that the plea being given on arraignment only was by reason of some lack of understanding as to the nature of the charges. Even if that were so, his Honour still had not with clarity explained that he did not give the applicant the benefit of the plea or any reasons therefor.
I add that the submissions relating to the benefit of the plea were in terms of its utilitarian value or its benefit in the facilitation of the course or process of justice.
It is, as was submitted, established principle that an offender who pleads guilty is entitled to expect a reduction to the otherwise appropriate sentence in recognition of the plea: Cameron v The Queen (2002) 209 CLR 339; Winchester v The Queen (1992) 58 A Crim R 345; R v Thomson & Houlton, supra; R v Sharma (2002) 54 NSWLR 300.
Finally, Mr Hamill suggested that the appropriate discount would fall within the range of 10 to 15 per cent, and provided the Court with figures conformable with the first allowance.
For the Crown, the alternative construction of the remarks cited from his Honour’s reasons was advanced in support of the proposition that it could not be said that his Honour had failed to reduce the sentences to be imposed for the utilitarian value of the applicant’s pleas. I am unable to accept that submission in the light of the structure of his Honour’s remarks on sentence and the particular paragraph cited therefrom.
My construction of the remarks on sentence and the relevant paragraph leads me to the view that his Honour simply did not give any benefit at all to the applicant for his pleas.
The alternative position of the Crown was that s6(3) of the Criminal Appeal Act 1912 would in any event apply, thus precluding resentencing (R v Simpson (2001) 53 NSWLR 704 at [79]-[80]).
In R v Shenton [2003] NSWCCA 346 Adams J said at para [5]:
”[5] Regrettably his Honour did not specify precisely what allowance he made for the plea of guilty in these circumstances and I wish to bring, if I may do so respectfully, to the attention of judges dealing with these matters, the point (as the Chief Justice made it clear in Thomson and Houlton (2000) 49 NSWLR 383) that it is an important aspect of the policy considerations underlying that decision that judges, where they can do so, should make explicit the allowance which is given to offenders who plead guilty in respect of the utilitarian value of that plea”.
The very important policy considerations to which his Honour there refers, as I understand Mr Hamill’s position, is that opacity should not attend any statement by a sentencing Judge in relation to a plea of guilty, let alone one that indicates that a discount has not been given and fails to provide unambiguous reasons.
I am not persuaded by the Crown’s argument that s6(3) applies. The error made by the learned sentencing Judge was one of critical importance affecting the quantum of the sentences imposed upon the applicant. I am of the view, however, that the circumstances attending this applicant and his plea are such as to warrant no more than a discount of 10 per cent, which would involve rounding the figures, a 6 month reduction to the head sentence and a 3 month reduction of the non-parole period.
The Court is thus in a position to intervene. Evidence by way of affidavit was provided both by the applicant and his solicitor as to what must be acknowledged to have been a traumatic experience. The applicant, upon his return to custody at the conclusion of his sentencing proceedings, entered his cell in company with an officer to find his cellmate had hanged himself. He watched every effort being made to resuscitate the cellmate. They were to no avail. There is evidence that he has suffered psychologically from that event.
In those circumstances I think it appropriate that in addition to allowing the discount of 10 per cent for the purposes of the plea, the events just referred to would constitute a basis for the applicant having additional time for rehabilitative counselling and I would propose that his non-parole period be reduced by 6 months.

Accordingly, the orders I propose are:
Leave to appeal be granted.
Appeal allowed.
Sentences imposed in the District Court quashed and in lieu the applicant be sentenced in relation to counts 1 and 2 to a term of imprisonment of 4 years to commence on 8 October 2002 and to expire on 7 October 2006 and that a non-parole period be fixed at 2 years to date from 8 October 2002 and to expire on 7 October 2004.
HIDDEN J: I agree with Levine J.

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LAST UPDATED: 14/05/2004