R v Zdravkovic
[2015] ACTSC 393
•16 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Zdravkovic |
Citation: | [2015] ACTSC 393 |
Hearing Date(s): | 22 October 2015 |
DecisionDate: | 16 December 2015 |
Before: | Robinson AJ |
Decision: | See [41] – [46] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of attempting to obtain financial advantage by deception – possession of a drug of dependence with the intention of selling or supplying it to another – offender’s ongoing association with an outlaw motorcycle club - emphasis of adequate punishment – general deterrence. |
Legislation Cited: | Crimes Sentencing Act 2005 (ACT) s 7 Criminal Code 2002 (ACT) ss 44, 45, 332, 603 Magistrates Court Act 1930 (ACT) s 90B |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 R v Elfar [2003] NSWCCA 358 R v McGourty [2002] NSWCCA 335 |
Parties: | The Queen (Crown) Peter Zdravkovic (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Number(s): | SCC 227A of 2014; SCC 227B of 2014; SCC 228 of 2014 |
Robinson AJ:
Peter Zdravkovic, the offender, has pleaded guilty to three offences.
Two counts of being knowingly concerned in the possession of a drug of dependence with the intention of selling or supplying it to another, contrary to s 164 (2) (c) of the Drugs of Dependence Act 1989 (ACT) and s 45 of the Criminal Code 2002 (ACT).
One count of being knowingly concerned in relation to an offence of attempting to obtain financial advantage by deception, contrary to ss 44, 45 and 332 of the Criminal Code 2002 (ACT).
In addition, the Court has been asked to deal with an offence transferred from the Magistrates Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT). That offence is one count of possessing a prohibited substance contrary to s 171 (1) (b) of the Drugs of Dependence Act 1989 (ACT)
Background
Attempt to obtain financial advantage by deception
On 20 March 2014, the offender was driving a black Mercedes Benz southbound on the Federal Highway. As he approached Lake George he was involved in an accident with a kangaroo. The vehicle suffered substantial damage. Almost immediately, the offender decided on a course of action whereby he would procure insurance cover for the vehicle and then make a claim on that insurer.
On 21 March 2014, the offender took out a comprehensive motor vehicle insurance policy with AAMI Insurance. I was told from the bar table that the premium was $5,000. Under this policy, the Mercedes was insured for a value of $169,407.00 in the name of Pro Line Concrete Pty Ltd. The offender was the sole director and shareholder of this company. The offender made other consequential arrangements for the towing and storage of the vehicle in furtherance of this course of action.
On 29 March 2014, an insurance claim was lodged and on 4 April 2014 AAMI Insurance was provided with a quotation for repairs in the sum of $83,276.39. This quotation was later revised down to $82,721.44.
AAMI Insurance did not pay the claim made. On the contrary, that insurance company now seeks reimbursement for towing, storage and investigation fees in the sum of $1,073.45.
Unbeknown to the offender, his telephone conversations were being intercepted at that time pursuant to a telecommunications services warrant. Subsequently, the offender was charged with an offence of attempt to obtain financial advantage by deception contrary to s 332 of the Criminal Code 2002 (ACT). He entered a plea of not guilty to that offence. On 3 June 2015 the Crown filed a fresh indictment of being knowingly concerned in relation to an offence of attempting to obtain a financial advantage by deception contrary to s 332 of the Criminal Code 2002 (ACT). That offence is punishable by 10 years’ imprisonment.
Knowingly Concerned in Possession of Drugs with Intention of Sell/Supply (Two counts)
On 16 April 2014, police executed a search warrant at a house in Calwell. Those premises were owned by the offender’s parents. The offender resided there with his partner. No other person lived there.
At the rear of those premises was a large shed. It comprised of a number of rooms. The shed contained a workshop, gym equipment, cooking facilities, pinball machines and a bathroom. The shed served as the club house for the Comanchero Outlaw Motorcycle Gang (COMG). Members of the COMG would often attend the shed in the company of other gang members. It was adorned with flags and motifs for the COMG.
As at 16 April 2014, the offender was the President of the ACT chapter of the COMG.
In one of the cupboards in the rear of the shed police found a number of items:
(i)Clip seal bag containing a white powdered substance, later analysed as cocaine. This was estimated to have a street value of between $64,000 and $84,000.
(ii)Snap lock bag containing six blocks of a green crystalline substance, later found to be methylamphetamine. This was estimated to have a street value of between $32,000 and $112,000.
(iii)Vacuum plastic bag containing a white crystalline substance which was also found to be methylamphetamine.
(iv)a pair of digital scales with traces of cocaine and methyl amphetamine and an “ice pipe” which is used for smoking methylamphethamine.
In the kitchen pantry of the main residence police also found a brown substance containing MDMA.
The offender was charged with two counts of being knowingly concerned in the possession of a drug of dependence with the intention of selling or supplying it to another. This is an offence contrary to s 164 of the Drugs of Dependence Act 1989 (ACT) and is punishable by five years’ imprisonment.
Pleas of Guilty
On 9 June 2015, the offender pleaded guilty to being knowingly concerned in the offence of attempt to obtain financial advantage by deception.
On 22 June 2015, the offender pleaded guilty to the two counts of being knowingly concerned in possession of drugs with the intention of selling or supplying them.
The offender entered pleas of guilty to the drug charges at the first reasonable opportunity. The plea of guilty to the attempt to obtain financial advantage by deception was entered six days after the fresh indictment was filed. I will give the offender the benefit of approximately 20 per cent discount for these pleas but recognise that the Crown had a strong case in relation to all three charges.
It is important to set out the agreed basis on which the pleas of guilty to the two counts of being knowingly concerned in the possession of a drug of dependence with the intention of selling or supplying it to another were entered. It is not alleged that the offender intended to personally sell or supply the drugs found in the shed. It is alleged that he was both aware there were drugs in the shed and that other members would likely use, supply, or sell those drugs. The Crown expressly said that I should view this possession as an isolated act, in the sense that the Crown was unable to prove any other possession of drugs. I will adopt this position for the purposes of sentence.
On the charge of attempt to obtain financial advantage by deception, the offender is to be sentenced on the footing that he sought to obtain the sum of $82,721.44 dishonestly. Insurance fraud is obviously a matter which needs to be suppressed because of the resultant impact it has on the increase in premiums to account for fraudulent claims and the costs of properly investigating those claims.
There was an element of spontaneity with the commencement of the fraud. However, the fraud progressed through stages of towing, taking out a policy, the making of a claim and having the car examined for repair/quotation. There was time to reconsider and reflect on the position and retreat from the enterprise. The fact that the insurance fraud developed after an actual accident distinguishes it, to some extent, from the more deliberate insurance frauds perpetrated by arson or having an undamaged vehicle stolen and destroyed. It was not suggested that there was any explanation such as financial hardship for the fraud. On the contrary, counsel for the offender stated that the offender was a successful small business owner, who employed a number of staff and was intending to increase his workforce to service contracts recently awarded to his company after a successful tender.
In relation to the drug offences (as I will refer to the two charges of knowingly concerned in possession of drugs with intention of sell/supply), by his pleas of guilty the offender has admitted all the elements of the offences created by the operation of s 164 (2) (c) of the Drugs of Dependence Act and s 45 (1) of the Criminal Code.
It is important to keep in mind the matters recited at paragraph 19 above in relation to his guilty plea and note that his culpability for the drug offence is to be assessed on the basis of those matters. The premises on which the drugs were located were under the offender’s complete control. The offender has chosen to facilitate access to those premises where he knew that drugs, although not those particular drugs, were housed. The quantity of drugs and their value was quite significant. There is no evidence of financial reward flowing to the offender from the sale or supply of the drugs, nor is there evidence that the offender used or sold the drugs. I keep in mind the maximum penalty for this offence is five years.
In determining the objective seriousness of this offence, I obtain guidance from Bui v The Queen [2015] ACTCA 5 which concerned a drug trafficking charge under the Criminal Code 2002 (ACT). This charge under s 603 of the Criminal Code is analogous to that under s 164 of the Drugs of Dependence Act 1989 (ACT). At paragraph [41] the ACT Court of Appeal said:
Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:
(a)The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50; [33].
(b)While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34].
(c)The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.
Subjective Matters
The offender was educated to the completion of year 12. Thereafter, he entered full-time employment in the construction industry. He has been employed since Year 12. At least for the last five years, he has run his own concreting company and I was told from the bar table that he has a small number of employees. He is now 33 years of age.
He has a young son and, although there are apparently some difficulties at this moment, he has been in a relationship with a partner for some two years and which he described as loving.
He told the authors of the Pre Sentence Report that his behaviour in relation to the insurance fraud was inexcusable. He, however, told the same authors that he had only pleaded guilty to the possession charges because he was responsible for the property at the time of the search. The authors describe the offender as being assessed as low risk of general re-offending due to him enjoying the protection of stable accommodation, family supports and long-standing employment. He does not have an issue with the use of alcohol and illicit substances.
At the bar table there was discussion concerning the rehabilitation of the offender. I have concluded that the offender does not require the assistance of professionals in this regard. The offender is quite capable of and does function according to his capacity. The choices he has made have involved him accepting the risks associated with criminal behaviour. It remains to be seen whether he will make the same choices in the future.
A Procedural Aspect
Under the heading “Companions” the authors of the Pre Sentence Report said the following:
i. Mr Zdravkovic reported that this had been an area of risk for him in the past and acknowledged his previous affiliation with an outlaw motorcycle club; however claimed that following being charged with the offences currently before the Court, he had severed ties with these associates. His partner confirmed he is no longer linked with that peer group.
ii.It is noted that Mr Zdravkovic reported that the rear shed located at the property, referred to in the case statement… was once the clubhouse used by an outlaw motorcycle club, however had not been used for that purpose since early 2014. This information was confirmed by his partner.
Counsel for the accused told me that he did not intend to call the offender to give evidence. Neither was the offender’s partner to be called.
In these circumstances, I told counsel that if it was going to be said in submissions that the offender had completely changed his lifestyle, including having abandoned his friendship and association with members of the COMG, then I would need to have sufficient confidence about that position to act upon it. I pointed out to counsel that the offender was the President of the ACT Chapter of the club, not simply, for example, an associate member, and this would indicate to me a degree of responsibility and entrenchment. That of course was not conclusive as to his future intentions in terms of the COMG and its members, but it did mean that there should be a sufficient foundation for that finding if I was to give it any weight.
The question of acting upon hearsay is a recurring issue at sentencing hearings. Some matters can be accepted from reports and from the bar table, some are more difficult to accept without proper evidence or a firm foundation. This is so even though the Evidence Act 2011 (ACT) does not automatically apply to sentencing proceedings. (See s 4 (2) of the Evidence Act.)
In R v McGourty [2002] NSWCCA 335 (per Wood CJ), this issue was put:
[24] So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to a psychologist. Recently this Court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: Regina v Quatami [2001] NSWCCA 353, at para58 and para59 per Smart AJ, and at para79 per Spigelman CJ).
[25] I whole heartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested.
To the same effect was the decision of the Court of Appeal in R v Elfar [2003] NSWCCA 358:
[25] The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports – (R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.
Counsel for the offender did not make the submission foreshadowed in the Pre Sentence Report. I therefore place no weight on what I consider to be the self-serving, untested statements of the offender that he no longer associates with those companions. The offender could have given evidence attesting to the truthfulness of the statement but chose not to do so.
The issue is more than just procedural in nature. The matter of his on-going association with members of the Comanchero Motorcycle Club could impact on his risk of recidivism.
Criminal History
The offender does have a criminal record. He has been convicted of possession of drugs and assault as well as many less serious charges. Nonetheless, his record is such that some leniency can be extended to him in relation to these offences.
Disposition
In each of the three offences to which the offender pleaded guilty there is a need for emphasis on adequate punishment (s 7 (1) (a) Crimes Sentencing Act 2005 (ACT), as well as general deterrence (s 7 (1) (b)).
I will regard the two counts of knowingly being concerned in possession of drugs with the intention of supply/sell as being part of the one transaction. However, the sentence I impose will be cumulative upon the insurance offence.
Order
The sentences set out below have been reduced by a factor of approximately 20 per cent from sentences otherwise applicable to the offending to take account of the pleas of guilty.
On the offence of being knowingly concerned in attempting to obtain a financial advantage by deception contrary to s 44, s 45 and s 332 of the Criminal Code you are convicted and sentenced to 9 months’ imprisonment reduced from 12 months. That sentence is to commence on 22 October 2015
On the offence of being knowingly concerned in the possession of a drug of dependence, namely cocaine, with the intention of selling or supplying it to another contrary to s 164 of the Drugs of Dependence Act, you are convicted and sentenced to 12 months’ imprisonment reduced from 15 months. That sentence will commence on 21 July 2016.
On the offence of being knowingly concerned in the possession of a drug of dependence, namely methamphetamine, with the intention of selling or supplying it to another contrary to s 164 of the Drugs of Dependence Act you are convicted and sentenced to 12 months’ imprisonment reduced from 15 months. That sentence will commence on 21 July 2016.
On the charge of possessing a prohibited substance contrary to s 171 (1) (b) of the Drugs of Dependence Act you are convicted and sentenced to 2 months’ imprisonment. That sentence is to commence from 22 October 2015.
I set a non-parole period of 14 months. The offender will be eligible for parole on 21 December 2016.
I make a conditional order for reparation. I will assume that AAMI has elected to avoid the policy of insurance ab initio for fraudulent misrepresentation and thus will have to refund the premium to the offender or to his interests. AAMI can deduct reimbursement for towing, storage and investigation fees in the sum of $1,073.45 from the amount of the premium. In the event that my assumption is incorrect, then the offender is to make reparation to AAMI in the sum of $1,073.45 and that sum shall be paid to the Registrar of the Court for payment out to AAMI.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: 16 December 2015 |
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