R v Popovski - [2009] ACTSC 131

R v SLAVKO POPOVSKI
[2009] ACTSC 131 (10 September 2009)

EX TEMPORE JUDGMENT

No. SCC 11 of 2008

Judge: Rares J
Supreme Court of the ACT
Date: 10 September 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 11 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
SLAVKO POPOVSKI

ORDER

Judge:  Rares J
Date:  10 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

Slavko Poposvki is found guilty of possessing a drug of dependence, namely cocaine, at Canberra on 12 August 2007.
Slavko Popovski:
(a) sign an undertaking to comply with the conditions of this order;
(b) be of good behaviour for a period of 2 years ending 9 September 2011;
(c) comply with the good behaviour obligations, including the core conditions of the order, under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT).

The accused was indicted on two counts to be tried in this court, but, on 24 June 2008, the prosecution indicated that it would accept, in full satisfaction of the indictment, a plea of guilty to the second count, namely that on 12 August 2007, at Canberra in the Australian Capital Territory, the accused possessed a drug of dependence, namely cocaine, in contravention of section 169(1) of the Drugs of Dependence Act 1989 (ACT). The circumstances in which that occurred were in a statement of facts which the accused has accepted as accurate.

At the time of his arrest and charge on 12 August 2007, the accused was 22 years old. On the previous day, the police had obtained search warrants in relation to the accused and a motor vehicle in which he was found in the next day, a Sunday, at about 4.50pm. The accused was in the passenger seat of the vehicle. On executing the search warrant on the accused, the police found on his person a clear plastic bag containing 6.010 grams of cocaine, a trafficable quantity. He was arrested and appeared in the Magistrates Court the next day where he was granted bail.

The prosecution has accepted that the sole reason for the accused being in possession of that trafficable quantity, a large amount of cocaine, was for his own personal use and that there was no suggestion that he was engaged in any other activity with the cocaine. On that acceptance, he was able to offer the plea of guilty in answer to the whole of the indictment, that had previously included a count of trafficking under section 603(7) of the Criminal Code 2002 (ACT), which is no longer pursued.

I made a deferred sentence order when the accused had appeared before me for sentence on 11 September 2008: see R v Slavco Popovski [2008] ACTSC 94. On that occasion I indicated that I had in mind that today I would consider the degree of compliance by the accused with the conditions of the deferred sentence order, with a view to imposing an order that he be of good behaviour for a period…

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 Popovski

Details

AGLC: R v Popovski [2009] ACTSC 131
Case: [2009] ACTSC 131
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Slavko Popovski was found guilty of possessing a drug of dependence, specifically cocaine, on 12 August 2007 in Canberra. The court had to determine whether to impose a conviction on the accused, considering the seriousness of the offence, the accused's remorse, and his rehabilitation. The prosecution argued for a conviction with a good behaviour order, while the defence urged for a non-conviction order to allow the accused to pursue a career in law enforcement or customs.

The court balanced the community's need for punishment and deterrence against the impact of a conviction on the accused's future. It considered the accused's background, his acceptance of responsibility, and his efforts to reform his life. The court recognised that the accused's offending was driven by youthful immaturity and stupidity rather than hardened criminality. It concluded that imposing a conviction would disproportionately affect the accused's potential to contribute positively to society.

The court decided to impose a non-conviction order and a good behaviour order for two years, starting on 10 September 2009. This decision reflected the accused's genuine remorse, his efforts to reform, and the potential for him to become a useful member of the community. The court's approach aimed to balance the need for punishment with the possibility of rehabilitation, ultimately deciding that a conviction would be too severe given the circumstances.

Orders