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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jurkovic

Details

AGLC: Jurkovic, Bozo v R [1981] FCA 251
Case: [1981] FCA 251
Decision Date: 23 DECEMBER 1981

CaseChat Overview and Summary

Jurkovic was found guilty of possessing heroin for the purpose of supplying it to another person or persons and administering heroin to himself. Jurkovic appealed against the sentences imposed by the Supreme Court of the Australian Capital Territory. The appeal was heard by the Court of Criminal Appeal, which considered the legal issues concerning the admission of fresh evidence on appeal and the consistency or parity of sentences for the same offence. The Court concluded that the appellant's sentences were manifestly inadequate, and that the appeal should be allowed. The Court recommended that the appellant's imprisonment be used to address his drug dependency, and that the prison authorities and parole board be provided with relevant evidence to this end.

The Court of Criminal Appeal considered whether it was appropriate to admit fresh evidence in the form of an affidavit by Sister Moriarty, which was not before the sentencing Court. The Court noted that appellate Courts generally do not admit fresh evidence, but may do so in exceptional circumstances. The Court held that in this case, it was appropriate to admit the fresh evidence because the sentencing Court did not have the benefit of the information it contained, and it was relevant to the appellant's sentence. The Court also considered the limits of its capacity to form conclusions of its own, and the need for the sentencing Court to know exactly what material was presented to it.

The Court of Criminal Appeal considered the role of appellate Courts in ensuring consistency or parity between sentences for the same offence. The Court noted that there were no meaningful statistics available to guide it, and that it had to use the available statistics with caution. The Court considered the quantity of heroin, the appellant's reasons for procuring the supply, and his involvement with the Police. The Court concluded that the sentences imposed by the sentencing Court were manifestly inadequate, and that the appeal should be allowed. The Court ordered that the appellant be sentenced to imprisonment for a term of four years, with a non-parole period of twenty-one months, for the offence of possessing heroin for the purpose of supplying it, and a concurrent sentence of three months for the offence of administering heroin to himself. The Court also recommended that the appellant's imprisonment be used to address his drug dependency.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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