R v Petkos
[2019] NSWDC 175
•04 April 2019
District Court
New South Wales
Medium Neutral Citation: R v Petkos [2019] NSWDC 175 Hearing dates: 4 April 2019 Decision date: 04 April 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Sentence hearing adjourned; contested facts hearing required.
Catchwords: CRIMINAL – Sentence proceedings – unsatisfactory “Agreed Statement of Facts” – significant exculpatory facts not agreed by the Crown. Cases Cited: R v Martin Harmata [2013] NSWDC 214; R v Geerlings [2019] NSWDC 83 Category: Procedural and other rulings Parties: Regina (Crown)
Jim Petkos (Offender)Representation: Ms Chan (ODPP)
Mr M. Smith (Counsel)
File Number(s): 2018/160433 Publication restriction: Nil
Judgment
-
On 13 December 2018, Jim Petkos was committed for sentence to this court from the Local Court in connection with two principal offences: first, supplying a prohibited drug greater than the large commercial quantity for that particular drug; and, secondly, attempting to supply a prohibited drug greater than the indictable quantity for that particular drug.
-
Mr Petkos was arrested in relation to those matters as long ago as 22 May 2018 - that is, the first anniversary of his arrest is imminent. He has remained in custody continuously since the date of his arrest solely referable to the charges he faces today for sentence.
-
The proceedings were first listed in this court on 18 January 2019, when the matter was fixed for sentence today.
-
In fixing the matter for hearing, the list judge would have worked on the understandable assumption, absent anything said to his Honour to the contrary, that the facts were agreed.
-
Earlier today, having completed the arraignments list and other associated administrative matters, I embarked upon the hearing of this matter.
-
In the course of that hearing, the Crown tendered a bundle of documents, including a poorly drafted document entitled “Agreed Facts”. (It is poorly drafted because it includes a great deal of irrelevant material; or material which the court is intended, somehow, to interpret - by which I mean the contents of certain text messages, the meaning of which is dense, opaque and not obvious).
-
Included in the document entitled “Agreed Facts”, apart from including that unintelligible material, the parties have thought it appropriate to include the contents of records of interview which the offender gave to the police in which he provided an exculpatory version of events. The exculpatory version of events was not qualified in any way in the document tendered by the Crown.
-
A Sentencing Assessment Report was obtained and again it contains an exculpatory version of events by the offender.
-
Further, a psychiatrist has examined the offender and yet again an exculpatory version of events is offered by the offender through the report prepared by that psychiatrist.
-
I drew attention to this problem in R v Martin Harmata [2013] NSWDC 214. I repeated my concerns recently in R v Geerlings [2019] NSWDC 83 - in the course of which I said:
"[6] The purpose of an agreed statement of facts is for the Court to have before it facts which are agreed. All too frequently, documents described as “agreed statement of facts” contain contentious assertions which, upon examination by the Court, reveal a significant absence of agreement as to facts.
[7] The present case is but one of far too many examples. It is a practice which, in my opinion, must stop." (emphases added).
-
However, within a matter of a few days of the decision in R v Geerlings what has been put before the court in this matter is not an Agreed Statement of Facts for Sentence. The offender, through the documents I have referred to, asserts an exculpatory version of how it came about that these prohibited drugs were imported by him into Australia - and yet the Crown, knowing that fact, has only just told me that it does not agree with that exculpatory version.
-
It will be necessary - yet again - for a sentence hearing to be adjourned in order that a contested facts hearing can be conducted. If the offender is unsuccessful in that contested facts hearing, the discount for the plea may well be either very significantly reduced or entirely eliminated.
- I order that today's sentence hearing date be vacated. The matter is listed (part heard) before me for a contested facts hearing on 17 June 2019.
Decision last updated: 15 May 2019
2
0