R v Sarlija (No 3)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Sarlija (No 3)

Citation:

[2015] ACTSC 409

Hearing Date(s):

15, 18 December 2015

DecisionDate:

18 December 2015

Before:

Murrell CJ

Decision:

Sentenced to eight months’ imprisonment: first two months to be served full time and the remaining six months suspended upon the offender entering into a 12 month good behaviour order.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –sentence following judge alone trial – traffic in controlled drug heroin – low objective seriousness – sentencing considerations

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 36

Criminal Code 2002 (ACT) ss 603(7), 604

Parties:

The Queen (Crown)

Benjamin Mark Sarlija (Offender)

Representation:

Counsel

Mr G Mansfield  (Crown)

Mr J Robertson (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Lynch Solicitors (Offender)

File Number(s):

SCC 257 of 2014

MURRELL CJ:

Offence

1. Following a judge alone trial, on 22 September 2015 the offender was found guilty of the offence that, on 29 June 2014 at Canberra, he trafficked in the controlled drug heroin, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code).

1. The prosecution relied upon s 604 of the Criminal Code, which creates a presumption, unless the contrary is proved, that a person in possession of a trafficable quantity of a controlled drug has the intention of selling the drug.  In this case, the offender was in possession of 14 grams of heroin, which exceeds the trafficable quantity of five grams, but is well below the commercial quantity of 2.5 kilograms.

Facts

1. The facts are set out in my reasons for decision of 22 September 2015 (R v Sarlija (No 2) [2015] ACTSC 295).

1. Briefly, on the night of 20 June 2014, the offender was the sole occupant of a vehicle that was stopped by police.  The offender behaved in a nervous fashion.  On the front passenger seat there was a brown McDonald's bag which, apart from some burger wrappers, contained two golf ball sized balls of grey-coloured electrical tape.  Inside those balls was white powder, which proved to be 14 grams of heroin. The Court has no information concerning the purity of the substance, but there is information that the value of the substance was about $2800 if sold at street level.

Objective seriousness

1. The offence is of relatively low objective seriousness, but it is not at the lowest end.  The offender was motivated by the fact that he was short of income.  He was not a drug user who was, by virtue of his addiction, under pressure to raise funds to purchase drugs.  In other words, his involvement in trafficking was motivated by greed.

1. The quantity of drug involved in the offence is at the lower end, being very close to the trafficable quantity of five grams and a much smaller quantity than the commercial quantity of 2.5 kilograms. 

1. There is no evidence to suggest that the offence was part…