R v Sirocic

[2000] NSWCCA 447

CITATION:	R v SIROCIC [2000] NSWCCA 447
FILE NUMBER(S):	CCA 60014/00
HEARING DATE(S):	24 October 2000
JUDGMENT DATE:	26 October 2000
PARTIES :	Christopher Julian Sirocic - Appellant Crown - Respondent
JUDGMENT OF:	Sheller JA at 1; Dowd J at 21; Smart AJ at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/51/0183
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	Appellant - In Person (Conviction) - R J Button (Severity) Crown - P Hock
SOLICITORS:	Appellant - D J Humphreys (Severity) Crown - S E O'Connor
CATCHWORDS:	CULTIVATION OF PROHIBITED PLANTS - appeal against sentence - where trial Judge made no findings of the number of cannabis plants - where applicant has serious criminal history - whether sentence manifestly excessive - Drug Misuse and Trafficking Act 1985, s23
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	R v Pilley (1991) 56 A CrimR 202 R v Wong (1999) 108 A CrimR 531 R v Davis (2000) NSWCCA 244 R v Crombie (1999) NSWCCA 297
DECISION:	1. Grant leave to appeal out of time; 2. Appeal allowed; 3. Quash the sentence imposed on 9 December 1999 by his Honour Judge Twigg; 4. In lieu thereof, the applicant is sentenced to imprisonment for a period of eighteen months to commence on 9 December 1999 and expire on 8 June 2001 with a non-parole period of twelve months to expire on 8 December 2000.; 5. Direct that the applicant be released on parole at the end of the non-parole period.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60014/2000

SHELLER JA
DOWD J
SMART AJ

Thursday, 26 October 2000

REGINA v Christopher Julian SIROCIC

JUDGMENT

1 SHELLER JA: On 11 October 1999 the applicant, Christopher Julian Sirocic, was arraigned before his Honour Judge Twigg on a charge that on 20 March 1999 at Upper Orara he cultivated prohibited plants, namely cannabis plants. The relevant statutory provision was s23(1)(a) of the Drug Misuse and Trafficking Act 1985 (the Act). Under s3(1) “cultivate” in relation to a prohibited plant was defined to include harvesting the prohibited plant. The applicant pleaded guilty. On 9 December 1999 Judge Twigg sentenced the applicant to imprisonment for four years with a minimum term of two years commencing on 9 December 1999 and expiring on 8 December 2001 with an additional term of two years commencing on 9 December 2001. His Honour said there were special circumstances justifying a variation of the additional and minimum terms, namely the need for rehabilitation of the applicant. In sentencing the applicant his Honour took account of one matter on a Form 1, namely that at the same place on the same date the applicant had in his possession “a prohibited plant, namely cannabis leaf”.

2    On 10 August 2000 the applicant applied for leave to appeal against his conviction and the sentence imposed.

3    According to the agreed set of facts tendered on sentence, on 20 March 1999 the police executed a search warrant on premises at 276 Island Loop Road, Upper Orara where the applicant and his de facto wife, Kylie Rowlands, were residing. Both were present when the warrant was executed. During the course of a search, police found cannabis leaves, stalks, stems and flower heads in various places and cannabis plant matter wrapped in sheets under the bed and next to the wardrobe near the entrance. Search of a vehicle parked in the carport and belonging to Kylie Rowlands revealed several fresh green leaves in the boot. The total amount of cannabis found was 3,005 grams. The applicant admitted that all of the vegetable matter found at the house was his. He said that at 8 am that morning he was jogging in the bush when he tripped over. When he got up and turned around he saw marijuana plants growing in the bush. They were approximately five feet eight inches high. They were not surrounded by a fence. He left and later returned. He snapped the branches off because the plants were too thick to pull out of the ground. He carried them about one and a half kilometres back to his house. He said his intention was to strip the plants and smoke them. He said he had been smoking on and off for years and that he would smoke daily if he had it. He said he would average up to an ounce a week.

4    The applicant was born in Croatia on 25 May 1960. When he was three the family migrated to Austria and then came to Australia in 1970. The applicant left school early to supplement family earnings. However, after three years in the workforce he began to delve into the drug scene. This relationship with Kylie Rowlands extended over a period of about nine years with breaks.

5    The applicant gave evidence at the sentence hearing that he was residing at an address in Uralla with a man and that man’s de facto wife and her three children. The man was suffering from emphysema. The applicant said he helped in caring for him. He gave evidence about his own family and the death of his father in 1996. In the course of this evidence he said that when he found the cannabis plants he took three.

6    A pre-sentence report dated 25 November 1999 was prepared by Greg Kennedy from the Department of Corrective Services. Mr Kennedy wrote:

“ Previous Contact with this Service:
This service has had regular contact with Mr Sirocic under various alias’s [sic] since a Pre-Sentence Report was prepared for his Court appearance for Importation of a Prohibited Substance in 1984. He has been supervised under Licence, and as a Parolee on several occasions, and his supervising officers have had cause to breach him on every Order. Although reporting regularly his return to drug usage or Dealing have seen him back before the Courts whilst still under supervision. His most recent Parole Order expired in November 1997 and during his supervision extra conditions had to be drafted onto his Order by the Parole Board in an effort to control his movements around the State and his contact with a convicted drug dealer in Armidale. While presenting well his behaviour has not improved under this Service’s supervision. Conflicting reports during this period of adjournment allege continued illegal behaviour but this is as yet unsubstantiated.
Offending Behaviour
Mr Sirocic maintains his evidence that he found the plants while jogging in the hinterland and that having taken some home he returned to acquire the rest. His impulsive response mirrors his previous behaviour whereby he has never bothered to think about the consequences of his actions or their legality. The fact that he might be endangering his liberty again does not appear to cross his mind even after so many periods of incarceration. Mr Sirocic’s behaviour certainly fits several of the characteristics that define a psychopathic personality. With regard to the Cultivation charge Mr Sirocic’s previous period of incarceration would appear to have made this impossible.
Assessment and Sentence Options
Mr Sirocic’s outwardly humanitarian gesture of moving to Uralla to look after a terminally ill mate from 20 years ago in the St Mary’s district appears as a complete change in lifestyle for a man who has spent years importing and dealing drugs that cause pain and suffering. However his lack of honesty when discussing his situation causes this writer to doubt his sincerity and makes plausible the allegation that he is only in that position to ensure a good result from the Court. Mr Sirocic has made much of the fact that he is the sole carer of his ill friend and his three young daughters when enquiries confirm that the man’s partner of many years is in fact living in the house and can undertake all but the heavy lifting tasks. District Nursing Staff also visit to assist with the care of Mr Johanson.”

7    In the course of his evidence the applicant indicated an impression that Mr Kennedy did not believe some of the things the applicant told him. The applicant gave evidence of a religious background not mentioned in Mr Kennedy’s report. He also gave evidence that since 1996 he had been clean of heroin but that along the line he had contracted hepatitis C.

8    Clearly Judge Twigg was not impressed with parts of the applicant’s evidence. The pre-sentence report did not express any contrition by the applicant for his offence nor did the applicant in so many words express contrition during his evidence on sentence. However, Judge Twigg found that, implicit in what he said in evidence, the applicant regretted his actions in relation to the matters charged.

9    Judge Twigg referred to the applicant’s very extensive criminal history which began in 1978. In 1984 the applicant was sentenced to ten years hard labour for importing a prohibited import, on 30 May 1990 he was sentenced to three months imprisonment for possessing a prohibited drug, on 17 October 1991 he was sentenced to six months imprisonment for possessing heroin, on 28 October 1992 he was sentenced for supplying a prohibited drug to 18 months imprisonment later reduced in the Court of Criminal Appeal to a minimum term of twelve months imprisonment, and on 11 February 1993 the applicant was convicted for conspiracy to supply a prohibited drug. Again the Court of Criminal Appeal on appeal reduced the sentence to a minimum term of two years and an additional term of two years. In 1998 he was convicted for unlawfully possessing a prescribed restricted substance. Judge Twigg said:

“He tells me that he wrote to the Magistrate after that expressing his regret, that record indicates a drug dependence and that’s a matter that must be taken into account by this Court in relation to his suitability for alternative prison sentences, that is, alternative to a full time custodial sentence. Clearly the suggested course of periodic detention with a person of this drug dependence, would be a very serious matter and it is clear to me that he is not suitable for periodic detention, for community service, or a supervised recognizance.”

10    In imposing sentence, Judge Twigg said:

“I have taken into account the subjective factors that Mr Sirocic has put to me, I have taken into account the pre-sentence report and the evidence that Mr Sirocic put before me. I have taken into account the need for general and particular deterrence and the particular circumstances of this offence; there is a need for a general warning to the public that offences of this kind will be dealt with partially. Mr Sirocic ought also to know that he should be dealt with harshly in respect of this kind of matter. I have taken into account his criminal record and his health and age and family and other background.”

11 Pursuant to s32(1)(h) of the Act the maximum penalty for an offence under s23(1) dealt with on indictment and not involving commercial quantities is a fine of $220,000 or imprisonment for a term of ten years or both. Section 30 applies where the number of prohibited plants in respect of which a charge under s23(1) is laid is not more than a small quantity, that is to say five plants. The section enables the charge to be disposed of summarily unless an election is made to proceed on an indictment. If the offence is dealt with summarily, the maximum penalty is a fine of $5,500 or imprisonment for two years or both.

12    The applicant presented argument directed to his conviction. The argument was contained in a 27 page written submission which I have read. The applicant made further oral submissions. In so far as the written material is directed to the validity of the conviction it gives no sufficient weight to the definition in the Act of “cultivate” or to the fact that the applicant pleaded guilty to the offences charged. In the course of the submission the applicant stated that he understood that he had pleaded guilty. There is nothing in his submissions which raise any doubt as to the propriety of his conviction.

13    Mr Button of Counsel appeared for the applicant on the sentence appeal. Two grounds were argued; first that the sentencing Judge erred in making no finding of fact with regard to the number of cannabis plants cultivated and secondly, that the sentence was manifestly excessive in all of the circumstances.

14    Two things need to be observed about the charge of possession in the Form 1. The Crown did not rely upon the “deeming provision” in s29 of the Act even though on the agreed statement of facts the applicant possessed substantially more than the traffickable quantity of cannabis leaf, 300 grams. Possession of a prohibited drug is wholly a summary offence; s9 of the Act. Cannabis leaf is a prohibited drug. The maximum penalty for the offence of possessing cannabis leaf, whatever the quantity involved, is imprisonment for two years or a fine of $2,200 or both; s21 of the Act.

15    The applicant submitted that Judge Twigg erred in making no finding about the number of plants cultivated. Part of a judge’s responsibility is to determine the facts relevant for sentence consistent with the establishment of the essential legal ingredients of the crime; R v Pilley (1991) 56 A CrimR 202 at 203-4. Quantity is an exceptionally important aspect of the objective seriousness of offences relating to prohibited plants or substances as shown by the statutory increase of penalty with quantity; see R v Wong (1999) 108 A CrimR 531. Failure to identify quantity may result in error leading to a miscarriage of the sentencing process; R v Davis (2000) NSWCCA 244. However, in the present case, I have no doubt that the sentencing Judge proceeded on the basis of the unchallenged evidence of the applicant that he took three plants. I do not regard his Honour’s failure to mention this in the remarks on sentence as significant. The prosecution never suggested any different number. In R v Davis, Giles JA at para 19, said that, as a result of the absence of a finding of fact regarding quantity, a relevant sentencing consideration was passed over, namely that the matter could have been dealt with in the Local Court had the prosecution authority not elected otherwise; R v Crombie (1999) NSWCCA 297 at para 15 per Wood CJ at CL. This is a matter to which I shall return when dealing with the second ground.

16 In approaching the claim that the sentence was manifestly excessive, the applicant relied upon Judge Twigg’s acceptance that the plea of guilty was entered at the first opportunity, the finding of contrition, the disavowal of any claim of supply and the applicant’s uncontradicted evidence that the cultivation was spontaneous, opportunistic and limited to the cutting and removal of three cannabis plants that had been sown and tendered by another. Statistics supplied by the Judicial Commission of New South Wales suggest that for an offence under s23(1) of cultivating less than a commercial quantity of cannabis plants, that is to say between two and two hundred and forty nine, the penalty here imposed would be in the top 1 percent of severity. This strongly suggests error. The quantity cultivated was at the bottom end of the range. The applicant took no part beyond cutting the grown plant. The act of cultivation, namely harvesting, was opportunistic. One should add to this that but for the prosecution’s election to proceed on indictment the offence would have been dealt with summarily in which case the maximum term of imprisonment which could have been imposed would have been half that in fact imposed. The sentencing Judge made no mention of this. Furthermore, although the amount of cannabis leaf found in the applicant’s possession was over three thousand grams, it was accepted that the leaf found was the product of the plants harvested.

17    Taking full account of the objective seriousness of the offence, the maximum penalty imposed by the legislature and the applicant’s very serious history of drug related offences, I am satisfied that the penalty imposed was manifestly excessive. In my opinion, leave to appeal should be granted and the sentence quashed.

18    While the Court is entitled to have regard to the much lesser maximum penalty if this offence had been dealt with summarily, the fact remains that on indictment the maximum term of imprisonment for this offence was ten years. Furthermore, the amount of leaf in possession was substantial. As the Crown submitted, the three plants harvested were large plants which produced a substantial amount of cannabis leaf.

19    On behalf of the applicant material was put before us which suggests that since his imprisonment he had advanced some way towards rehabilitation in regard to his use of drugs. He expressed to the Court his intentions in the future not to re-offend. He tendered a certificate from the Kairos Prison Ministry Australia that he had successfully completed the Kairos Course of Christian Instruction at the Grafton Correctional Centre. I take into account his early plea of guilty and his contrition. I take into account the spontaneous and opportunistic act which gave rise to the charge. I take account of the fact that supply is not alleged. The applicant referred to the care that he had given to the man with whose family he was living at the time of sentence who, he told the Court, has since died. The fact remains that the applicant’s criminal history is a serious one and the offence committed is a serious one. In all the circumstances and taking account of the possession charge, in my opinion, the appropriate sentence to be imposed is one of eighteen months imprisonment. I accept, as the Crown did not challenge this, that there were special circumstances. However, I think these are sufficiently met in the present case by setting a non-parole period of twelve months.

20    I propose the following orders:

1. Grant leave to appeal out of time;
2. Appeal allowed;
3. Quash the sentence imposed on 9 December 1999 by his Honour Judge Twigg;
4. In lieu thereof, the applicant is sentenced to imprisonment for a period of eighteen months to commence on 9 December 1999 and expire on 8 June 2001 with a non-parole period of twelve months to expire on 8 December 2000.
5. Direct that the applicant be released on parole at the end of the non-parole period.

21    DOWD J: I have read the judgment of Sheller JA in draft form. I agree with the proposed orders, and with his Honour’s reasons therefore.

22    SMART AJ: I agree with Sheller JA.

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