R v Sarlija (No 3)
[2015] ACTSC 409
•18 December 2015
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
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).
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
The facts are set out in my reasons for decision of 22 September 2015 (R v Sarlija (No 2) [2015] ACTSC 295).
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
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.
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.
There is no evidence to suggest that the offence was part of an ongoing business involving the sale of drugs.
Subjective circumstances
The offender is 32 years old. He was 31 years old at the date of the offence.
He has no prior convictions for drug matters, but he has a significant criminal history. In more recent times, he has generally stayed out of trouble. There were a number of offences in the period 2004 to 2007. The most serious of those offences were two counts of aggravated robbery committed in December 2007. The offender was not sentenced for those offences until August 2011, when he received a sentence of 18 months' imprisonment, suspended after serving one month when he was released on a good behaviour order. Apart from the offence before the Court, since 2007 the only offence committed by the offender was an offence of affray committed in December 2013, which resulted in a 12-month good behaviour order. There has been an unsatisfactory response to supervision under this good behaviour order.
The offender left school in Year 11. Thereafter, he worked in odd jobs and unskilled employment, including the sale of fruit and vegetables. In February 2013, he was involved in a motor vehicle accident, which caused a back injury and adversely affected his capacity for employment. He reports constant pain in the mid-back. He is in receipt of Centrelink benefits. However, he does undertake casual gardening work and he is currently working as a brickies labourer.
The offender resides in a stable relationship with his partner of eight years. There are two children of the relationship, a two-year-old and a five-year-old. The two-year-old child has a medical condition for which he is undergoing treatment.
The offender denies substance abuse.
As a direct result of the motor vehicle accident in February 2013, the offender suffered a major depressive disorder caused by the pain and termination of the offender's employment, secondary to his injuries. The offender requires antidepressants and cognitive behavioural therapy for depression and pain. However, there is no evidence that he has commenced the treatment.
When the offender was asked to report to ACT Corrective Services to enable a pre-sentence report to be prepared for these proceedings, he failed to do so.
In relation to the offender's subjective circumstances, there is little to be said in his favour.
Sentencing considerations
In sentencing the offender, the Court is required to consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and, insofar as they are known and relevant, matters referred to in s 33 of that Act. The sentencing purposes that are relevant include the imposition of adequate punishment, general and specific deterrence, accountability, denunciation and recognition of harm to the community.
The sale of drugs, even in relatively small quantities and on occasions which appear to be isolated, is a very significant offence, as indicated by the maximum available penalty of 10 years' imprisonment. For such offences, it is important to send a message of general deterrence, particularly to persons who are motivated to commit such offences purely by the desire for financial gain, and not out of desperation because they are drug addicts.
I have referred to most of the considerations in s 33 of the Sentencing Act that are relevant and known to the Court. In relation to s 33(1)(i), I note that the offender has not taken responsibility for the offence. I note that a discount for a plea of guilty is not available, although of course the plea of not guilty in no way exacerbates the penalty that would otherwise be imposed. In relation to s 33(1)(w), the offender has not demonstrated remorse. The offender has not demonstrated any motivation to engage with supervised rehabilitation to address his involvement in criminal activities. He has a history of unsatisfactory response to supervision, which was apparent before the commission of the subject offence. I accept that the offender's financial circumstances are relatively poor, which is relevant under s 33(1)(n).
The Court was referred to a number of decisions, which to a greater or lesser degree were similar to the present case. No case is ever entirely similar. The principal parameter to which the Court must have regard when sentencing an offender is the maximum available penalty. The Court weighs the objective circumstances of the offence and the subjective circumstances of the offender in the context of that maximum penalty.
It was conceded by the defence that a sentence of imprisonment was the only appropriate penalty, but the defence submitted that this was an appropriate case in which to impose a wholly suspended sentence.
The starting point for any sentence is in the range of 10 to 12 months’ imprisonment and the appropriate discount under s 36 is about 20% (see Exhibit 4). I will take a starting point of 10 months’ imprisonment and deduct 20% to arrive at a sentence of eight months’ imprisonment.
In my view the sentence should include an element of significant punishment associated with the sentence. Such punishment will send important messages of specific and general deterrence.
Sentence
The offender is convicted and sentenced to eight months' imprisonment from 18 December 2015 to 17 August 2016. The first two months of the sentence are to be served by way of full time imprisonment, from 18 December 2015 to 17 February 2016. The remaining six months will be suspended upon the offender entering into a 12-month good behaviour order from 17 February 2016, which is subject to the following additional conditions:
(a)report to ACT Corrective Services at Eclipse House within two working days of his release; and
(b)submit to the supervision of ACT Corrective Services for as long as they consider necessary, but no longer than 12 months.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 24 December 2015 |
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