R v Jurkovic

[1981] FCA 251

Re: BOZO JURKOVIC
And: THE QUEEN
No. ACT G28 of 1981
Criminal law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Kelly J.
Ellicott J.

CATCHWORDS

Criminal law - Appeal against sentence - Evidence to be considered - Need for appellate Court to know clearly and exactly what material presented to Court sentencing offender - Admission of fresh evidence on appeal - Limits on capacity of appellate Court to form conclusions of its own - Possession of heroin for the purpose of supply - Administering heroin - Effect of plea of guilty - Role of appellate Court in endeavouring to ensure consistency or parity between sentences for the same offence - Lack of meaningful statistics - Use of available statistics - Quantity of heroin - Reasons for procuring supply - Involvement of Police.

Crimes Act, 1900 (N.S.W.) s.447B.

Narcotic Drug Ordinance, 1978 ss.3, 4, 6.

HEARING

CANBERRA

#DATE 23:12:1981

ORDER

1. The appeal be allowed and the sentences set aside.

2. For the offence under s.4(3) of the Poisons and Narcotic Drug Ordinance 1978 of possessing heroin for the purpose of supplying it to another person or persons, the appellant be sentenced to imprisonment for a term of four years, with a non-parole period of twenty-one months.

3. For the offence under s.6(2) of the said Ordinance of administering heroin to himself, the appellant be sentenced to imprisonment for a term of three months, to run concurrently with the sentence under (2).

4. The terms of the sentences and the non-parole period to commence from the date of the commencement of the sentences imposed by the Supreme Court of the Australian Capital Territory.

5. The matter be remitted to the Supreme Court of the Australian Capital Territory for execution in accordance with this judgment.

The Court adds that:

In this case the Court requests the Registrar to convey to the prison authorities its recommendation that all reasonable steps be taken during the period of the appellant's imprisonment to overcome or greatly reduce his drug dependency. It is very much in the public interest, as well as his own, that this be done. To this end a copy of Sister Moriarty's evidence should be supplied to those authorities. The Court also requests the Registrar to ensure that this recommendation, and the evidence mentioned, be placed before the authority considering the release of the appellant on parole, and the terms of that release.

JUDGE1

This is an appeal against the sentences imposed on the appellant by the Supreme Court of the Australian Capital Territory (Blackburn CJ) following pleas of guilty to charges under s.4(3) and s.6(2) of the Poisons and Narcotic Drug Ordinance 1978. The first-mentioned charge was one of possessing heroin for the purpose of supplying it to another person or persons, and for that offence he was sentenced to five years imprisonment with a non-parole period of two and a half years. The second offence for which he was sentenced was one of administering heroin to himself, and the sentence imposed was imprisonment for one year. The two sentences were ordered to be served concurrently.

The material before us includes depositions taken in the Court of Petty Sessions and is voluminous. The Crown not objecting, we admitted as fresh evidence the part of the depositions not already before us, because it appeared that although that part was not formally tendered, some of it was handed up to the learned judge; he read some pages of it to which he was referred, and may have read others. There were three defendants in the Court of Petty Sessions against whom charges under s.4(3) had been laid, and the proceedings against them were heard together in the Supreme Court. There was also a further charge against the appellant, relating to cannabis, and he pleaded guilty to it, but the learned judge, being in doubt as to the correctness of the plea, adjourned the matter to a date to be fixed.

The case draws attention again to the need to know with clarity and exactness what material was presented to the Court of first instance which considered sentence. If sentence follows trial by a jury, the facts concerning the commission of the crime will usually have been dealt with fully. The jury's verdict will involve certain manifest conclusions, which are binding. If other conclusions are to be drawn against the accused, they have to be the subject of admissions, or the presiding judge will himself have to find the necessary facts, proved to the usual standard, (see per Bray CJ in Law v Deed (1970) SASR 374, 378) from the evidence already adduced, or from further evidence presented to him. If there are issues of any substance, the judge must know what they are, so that he can record his decision upon them.

The evidence placed before a judge at the sentencing stage is to assist in arriving at an appropriate sentence for the particular crime. Appropriate, that is to say, having in mind the limited sentencing options available. For this purpose, evidence on a range of matters such as character, prior convictions, personal and family background and personality or psychological factors is admitted. Care must be taken to ensure that adverse material is relevant and properly proved (R v Van Pelz (1944) 29 Cr. App.R. 10; R v Sargeant (1974) 60 Cr.App.R. 74, 79). It is necessary to avoid reliance on evidence as to other offences for which there are not convictions. If what is properly established does suggest or go towards proving some other offence, its effect in that connection must be disregarded. The accused can only be sentenced for the crime for which he has been found guilty, or in respect of which he has pleaded guilty. There is as yet no provision or custom in the Australian Capital Territory which enables other offences "to be taken into consideration" (cf. s.447B of the Crimes Act, 1900 (NSW)). The relevant general principles were recently dealt with by the High Court in R v De Simoni (1981) 55 ALJR 469,474,478 the actual decision in which turned upon the terms of the West Australian Code (see at 472).

It is important to an appellate Court that it know with precision what the relevant evidence is, and in relation to matters in dispute, what the findings of the judge were. The admission by it of fresh evidence is by no means routine. One result of such a course is to make it difficult for the Court to know what effect should be given to a finding of the judge at first instance, which was based on less complete evidence, or how the exercise of his discretion should be evaluated. A remission of the case to the Court below may become necessary (cf. Lawless v The Queen (1979) 26 ALR 161 at 166,172,182,183). In ordinary circumstances, we would give considerable weight to the trial judge's assessment and would only interfere with the exercise of his discretion on the matter of sentence if satisfied that he has made a material error, or that the sentence is unreasonably disproportionate to the crime. In the present case we have been referred, mainly by counsel for the appellant, to various parts of the depositions, as if we should form conclusions of our own on a variety of matters, but there are limits to what we can do in this regard.

Looking first at the more serious offence, it is desirable to set out the statutory provisions creating the offence:

"Section 4 (1) In this section, 'controlled substance' means a substance that is a Schedule 8 substance or a Schedule 12 substance.

(2) A person who supplies a controlled substance to another person is guilty of an offence.

(3) A person who has a controlled substance in his possession for the purpose of supplying the substance to another person or to other persons is guilty of an offence.

(4) In proceedings for an offence against sub-section (3), a person who has in his possession a quantity of a controlled substance, being a quantity that exceeds the prescribed traffickable quantity for that substance, shall, unless the contrary is proved or the person proves that he had lawful authority to have the substance in his possession, be taken to have the substance in his possession for the purpose of supplying the substance to another person or to other persons.

(5) An offence against sub-section (2) or (3) is punishable upon indictment.

(6) A person who commits an offence against sub-section (2) or (3) is punishable, on conviction -

(a) if the offence is committed in relation to a substance other than cannabis - by imprisonment for a term not exceeding 25 years or a fine not exceeding $100,000 or both such imprisonment and fine; and

(b) if the offence is committed in relation to cannabis - by imprisonment for a term not exceeding 10 years or a fine not exceeding $4,000 or both such imprisonment and fine."

Heroin is a "controlled substance" and the "traffickable quantity" thereof (s.4(4) and Schedule 9) is 2 grams.

In the present case, there was a mixture of sugar and heroin the weight of which was 10.9 grams, but the amount of heroin in it was only .872 grams.

In late November 1980, one Banesic, who was known to the police in connection with his use of drugs, told them that there was a 3 months supply of heroin in Canberra, and that he thought he could get some. His motivation in volunteering this information was apparently that he was tired of the police pursuing users, and not getting at the people higher up. He mentioned one Gomez as a person engaged in selling. The police invited him to go ahead, and together they set up what one policeman has called a "controlled buy", the idea being to trap the supplier. The utilisation of Banesic's services was dealt with in the following passages in the evidence of Detective Senior Constable Lewis of the drug squad:

"Is it the case that the man Banesic was asked to co-operate in playing the role of a police agent in this investigation?--- He was given the opportunity of participating in that role, yes. So the suggestion was made to him?---No, I would not say that. What do you mean by your last answer?---He offered to fulfil that role to begin with, and we took him up on it."

Banesic asked the appellant to get a supply, but the latter, who mistrusted Banesic, refused. Banesic then asked Gomez to see if he could get a supply of heroin, and they agreed upon an amount of 10 "foils". Gomez then approached the appellant, with whom he was friendly, and the latter agreed to get what was required, but on the basis that Banesic did not know of his involvement. The police, by dint of surveillance, came to believe that Gomez was the primary local source of supply, but he was in fact only an intermediary, as also was the appellant. The name of the supplier to the appellant remains unknown. Although the appellant gave evidence before the learned judge, he refused to disclose the name, on the ground that he was likely to be mistreated in prison by other inmates, and possibly killed, then or later, if he did so.

The appellant obtained the heroin in a packet containing 10 foils and promptly delivered it all to Gomez. Gomez took two portions of it, gave one to the appellant, and kept one himself. The remainder was divided into 23 "foils". The appellant immediately used his portion to give himself a "shot" by injection. How many "shots" or oral doses were in the 23 foils does not appear from the evidence. The literature shows that the amount of heroin in a dose varies considerably, depending on such factors as its purity, the method of use, the period for which it has been used by a particular individual, and the degree of his addiction. The USA Drug Enforcement Agency has a category "small habit users", being those who use on the average 10 mg. heroin per day; "large habit users" are those who on average use 87 mg. per day. These figures should only be taken as providing a very general guide. In R v Kays (1979) 25 ALR 174,175,177, Burt CJ accepted the accused's statement that 3.7 grams of heroin would only "make up to something like 32 shots", lasting an addicted person only five or six days. Assuming even distribution, each foil would have contained a maximum of about 38 milligrams of heroin. The appellant was apprehended when Gomez, with the appellant nearby, was in the process of handing over the supply to Banesic and obtaining payment for it. Police were waiting, as planned with Banesic, at the place of transfer.

The appellant pleaded guilty to this charge when called on to plead at his trial. The prosecutor then stated relevant facts, a police officer (Detective Senior Constable McGeachie) was called to give the antecedents report, and he was cross-examined on a number of matters relevant to the offence itself. Detective Senior Constable Lewis was called to give evidence at length, and the appellant's fiancee, with whom he was living, also gave evidence. Sister Moriarty, the Co-ordinator of the Drug Referral and Information Centre at Reid gave evidence relating to the appellant's addiction, about which he had seen her as early as 1978, and the possible efficacy in his case of methadone treatment. There were then all the depositions from the committal proceedings to which I have referred.

The Crown case is not based on s.4(4). There is the one offence, namely that under sub-section (3), but sub-section (4) is a deeming provision with a reverse onus. As already mentioned, in the case of heroin, the "prescribed traffickable quantity" to which sub-section (4) refers is 2 grams. We were referred to s.3(4) which is in the following terms:

"A preparation or admixture that contains a substance that is specified, or is to be taken to be specified, in a schedule to this Ordinance, other than Schedule 9, shall, unless the contrary intention appears, be taken to be a substance specified in that schedule."

This sub-section does not mean that the weight of the total admixture is to be taken as the figure when applying schedule 9. It simply means that heroin glucose is still heroin for the purpose of the schedules (other than schedule 9), no matter how small or large the proportion of heroin. The consequence is that in the present case the appellant must be taken as having pleaded guilty to the offence stated in s.4(3), without its opertion being extended by sub-section (4), - the amount of heroin being far too small.

It is convenient to make two observations at this stage. One is that because the section draws no distinction between the amount of the drug, or indeed as to the type of drug, the Court must be left with a wide discretion. Heroin is of course to be treated as one of the most harmful drugs. The other is that while there is the one maximum penalty for offences under sub-sections (2) and (3), they are recognised as distinct offences and are not otherwise assimilated.

Counsel for the appellant argued this case with commendable assiduity. His first major point was that the learned judge had paid excessive regard to the heavy maximum penalty prescribed by the Ordinance. The maximum sentence accords with a legislative policy followed generally in Australia, after Ministerial conferences a few years ago concerning the drug problem. His Honour referred to the maximum penalty aspect more than once, and particularly in the following passage:

"The law provides the maximum penalty of 25 years imprisonment and $100,000 fine or both thus demonstrating unmistakably the strongest possible legislative disapproval of what is a foul and revolting crime. I use those words expressly, deliberately and in relation to the actual crimes which have been committed in these cases."

(These remarks were also directed at "two other persons who committed the same offence" and to whom I have already referred as being before his Honour at the same time).

It is not to be doubted that the prescribed maximum penalty is a factor to be taken into account, particularly when it has been enacted recently. The extreme horror and disgust with which the public regards the trafficking in hard drugs is registered in the present legislation. At the same time, the maximum is intended for application to the worst possible circumstances. It is recognised, as it has to be in relation to virtually all crimes, that circumstances are infinitely various, that moral blame differs considerably between cases, and that there are principles regarding sentencing and the purposes to be achieved which a Court has to apply to the particular case (see R v Sargeant (supra, at 77)). Subject to what the legislative authority may specifically prescribe, and using all available guidance, the overall duty of the Court is to do what appears to be best for the safety and the welfare of the community. In forming its assessment the Court will take account of long term as well as short term considerations. Reform or improvement while imprisoned is important for the sake of both the country and the individual.

The maximum sentence for the present crime has been set out earlier. A sentence of 25 years imprisonment is akin to a sentence of life imprisonment in its effect, if it is not more severe. Undoubtedly there are situations in which it would be appropriate.

One of the functions of a court dealing with an appeal against sentence is to endeavour to ensure that there is a measure of consistency or parity between sentences for the same offence. Moreover, the extent of a sentence cannot be worked out a priori; there must be empirical standards of comparison. I have collected information concerning sentences imposed in the Australian Capital Territory and in New South Wales and Victoria for heroin offences the same as or comparable with those for which the present appellant has been convicted. I should interpolate the observation that so far as I can ascertain there is no comprehensive set of meaningful statistics available. I have also looked at recent English cases (where, however, the maximum is 14 years) and read what Thomas, Principles of Sentencing, 2nd edn. (1979) has to say at pp. 188, 189. Only a very general guidance can be obtained in this way, and caution has to be used in applying such information as is available. Two factors seem uniformly to be regarded as important. One is the amount of the drug, in terms of pure heroin. The other is whether, supply being a purpose, the supply was to be for straight out commercial profit (the more serious case) or for financing the prisoner's own addiction ; in the latter case part would doubtless be for his own use. In the last-mentioned type of case, five years imprisonment is in general at or towards the top of the range, if the amount involved is small. There is a useful discussion of sentencing in relation to Australian drug legislation by J. Willis in (1980) 12 Melb.ULR at p.467ff.

Counsel points to the small amount of heroin involved in this case. I have already discussed this aspect. From my reading on the subject, I would judge it to be very small as compared with many cases coming before the Courts. It is less than half the "traffickable quantity".

It is then pointed out that the appellant obtained, and supplied, the heroin, in response to a particular request which was made in collaboration with the police. The learned judge dealt with this matter as follows:

"Now, applying this to the case before me, the evidence in my opinion does not show that the offence was instigated by a police officer or by a person acting under the instructions of the police in the sense that it would not have been committed had not the police procured its commission. That, I say, is not shown by this evidence. It is clear on the evidence that there was collaboration between the police and another person to procure the apprehension of the accused and others."

There has been some discussion about particular words used by his Honour, but the relevant question is whether it was as a result of police action that the order was placed by the appellant and possession for the purpose of supply was obtained by him. I do not understand the answer to be in dispute. There was no evidence which would have supported a finding against the appellant that he would have made the particular supply had not the particular request been made, or that the request would have been made had the police not asked for it to be made, or supported the making of it. For reasons already given, it cannot be said against him that he would or might have done the same sort of thing anyway. The evidence is clear that the police were acting in collaboration with Banesic before the order was placed with the appellant, and the nature of the trap was decided before then. They provided Banesic with the $7,200 which was said to be the purchase price of the heroin in question. This amount seems to have been greatly above the value of the heroin. It is true that the appellant did not know the police were involved, and that he supplied to the order of Gomez, but that consideration goes to the signifiicance of the involvement, not to its existence, or its relation to the supply in question. I am therefore respectfully of the view that his Honour was partly in error in his expression of the conclusion to which I have referred.

Counsel for the Crown asks us to treat the appellant as a "dealer" in heroin, and such a view may have been presented to the judge. It would I think have been contrary to the principles to which I have already referred for the learned judge to have acted on a view that the appellant was engaged in a business or practice of dealing in heroin. This would have amounted to a finding that he had committed similar offences on other occasions. In fact, the judge made no such finding. The problem was nevertheless a difficult one, and a fine dividing line was involved, because it was an important part of the appellant's case relative to sentence that he had a heroin dependency. He strongly presented a case that he had frequently (although not regularly) dosed himself with heroin. For this purpose he plainly obtained supplies. In explaining his relationship with Banesic and Gomez he said they were addicts, and that "they" (presumably Gomez and himself and some others) from time to time got supplies for each other. It seems to me that a Court is entitled to entertain this evidence and consider it in its relevance to sentencing for the charge in question, but should be careful not to sentence him for being a regular or constant supplier, that is to say, for other offences, albeit of the same nature, for which he has not been convicted. Looking simply at the evidence, he was asked in cross-examination whether he was a "dealer" in hard drugs, such as heroin, and he said "yes", but at a later stage, in response to a further question he said "To use, support my habit". The appellant denied that he ever took any profit from the small supplies made by him, except that he usually took or received commission by way of some heroin for his own use. In relation to the supply in question he said that he was doing Gomez a favour. The fact that the amount of heroin was very small, that it was already diluted to 8%, and that no further dilution was attempted suggests that he, and Gomez, were at the end of the line of supply.

A matter relied upon by the Crown is that on this occasion the appellant supplied the drugs, without any assurance that they would be used only by one, or a few, people known to him. In other words, so the submission goes, he was supplying for "indiscriminate" use. I believe that there is evidence which could support such an inference, but the matter was not put to him directly in cross-examination, and there is no finding of the learned judge to that effect. Indeed, his Honour seemed to arrive at a different conclusion:

". . . there is no evidence of any involvement, either actual or intended, of any non-drug-dependant person, either as a consumer or as a dealer."

I do not think we can go beyond saying that he was procuring a supply for a durg-dependant friend or acquaintance, without any clear understanding as to how or by whom it would be used. He himself was an intermittent user, and an occasional purchaser or vendor of small amounts. In this way he had acquired "contacts". His Honour expressed the view that the fact that the supply was to a drug-dependant person provided no basis for mitigation, but I would respectfully disagree with the converse of this proposition. It seems to me a much more serious offence to "push" drugs to persons who have not been users, or are not addicted.

Regarding the personal history of the appellant I respectfully take the following extract from his Honour's reasons:

"The accused was born in Yugoslavia in 1951. His father died when he was five and he came to Australia with his mother when he was about 14. He has worked intermittently since the age of 16 at various jobs of a labouring type. He married in 1972 and a daughter was born of this union in 1973. The marriage was dissolved in 1975. The daughter is in the custody of the mother of the accused and the accused is closely attached to his mother and his daughter. Since 1979 the accused has lived with a girl who gave evidence on his behalf and the parties intend to marry. The accused has a history of using drugs since about 1969. This history includes periods of addiction to heroin. He was so addicted at the time of the offences. He had previously taken some steps to free himself from drugs. He first consulted Sister Moriarty of the Drug Referral and Information Centre in September 1978. He has consulted her again regularly since January 1981. He is not yet free of his addiction, and on the evidence has quite a long way to go, notwithstanding a desire to achieve that aim; just a desire which I accept is sincere, although his efforts are much less than totally successful. Sister Moriarty's evidence, which I accept, is that he realistically says that he is unable to give up drugs without assistance. She considers him to be probably a suitable patient for a methadone programme and she says that there is reason to think that if he undertook and persisted in such a programme he might eventually be free of drugs. The programme would probably last for two or three years and would require regular attendance at the appropriate places for treatment and counselling. The accused has a long record of criminal convictions from 1970 onwards. The offences include four of larceny, one of robbery in company, one of assault, tow of possession of cannabis. Not all these offences were related to drugs. He has twice, before the commission of the present offences, been released on recognizance without sentence. On the charge of robbery in company he served a term of imprisonment."

I agree with the learned judge that the possibility of a methadone programme being effective in the appellant's case does not justify his release on a bond. A gaol sentence must be imposed. Whether or not his drug dependency can be cured or relieved during this time is a matter for the penal authorities. Unfortunately those authorities have not achieved much in the past. I am sure that we are all anxious that adequate and proper treatment be given. It is strongly in the public interest that this be done, quite apart from the benefit to the appellant himself.

The judge took into account the appellant's plea of guilty (Schumacher v R. (Fox ACJ, Blackburn and Sheppard JJ, 15 June 1981 unreported) and see R v Ng and Dhalai (noted (1978) Crim. LR 176) and reduced the sentence he would otherwise have imposed. Such a plea was probably inevitable, although a trial may have given the appellant a greater opportunity to test police evidence with which he disagreed. The fact that his Honour considered that a penalty significantly in excess of five years would have been appropriate had there not been such a plea does cause me some concern, and perhaps lends weight to the submission that he was excessively influenced by the prescribed maximum penalty. At the same time I must say that in this case I would not myself have reduced the sentence to any great extent by reason of the plea.

As I have already said, this Court does not on appeal lightly interfere with a sentence. In particular, it does not substitute its own view of what is an appropriate sentence for that of the judge appealed from. In this case, however, we may have received more evidence than the judge had regard to. I am of the view that in the whole of the circumstances the sentence was excessive, and should be reduced. It seems to me that the judge took the view that, in the absence of a plea of guilty the appropriate sentence would have been of the order of 5 1/2 to 6 years. This is more, by an appreciable amount, than is usually awarded in similar cases. It does not take into account adequately the very small amount of heroin involved, or that the appellant was not in possession of the drug for the purpose of commercial supply. He was, regrettably, drug dependant himself, and what he got out of the transaction was one shot, which he administered immediately. I believe that it is also a matter of mitigation that the particular crime charged occurred only because the police asked that the order be placed. The situation is different from one in which the police, by agents provocateur or otherwise, break into an on-going supply system. The police and other authorities are not in my view to be discouraged in the least from following either course, but when it comes to sentencing the mitigating effects can be different.

In relation to the conviction under s.4(3) of the Ordinance, the sentence should in my view be reduced to four years with a non-parole period of twenty-one months, both to date from the time of the original sentence.

In relation to the conviction under s.6(2) of the Ordinance, a sentence of twelve months is in my view excessive and well out of line with the normal. It should be reduced to three months, to date from the time of the original sentence and to run concurrently with the first-mentioned sentence.

In my view, therefore, the appeal should be allowed, the sentences should be set aside, and in lieu thereof the abovementioned sentences substituted.

JUDGE2

I have had the advantage of reading the reasons for judgment prepared by Fox, J. I concur in those reasons and in the result reached by him. I join in the recommendation that all reasonable steps be taken during the appellant's imprisonment to overcome or greatly reduce his drug dependency.

JUDGE3

I agree with Fox J. for the reasons expressed by him that the sentences imposed on the appellant in respect of the offences committed were excessive. I also agree with the substituted sentences and orders which his Honour proposes.