Regina v Milos Zajac

[2001] NSWCCA 361

CITATION:	Regina v Milos Zajac [2001] NSWCCA 361
FILE NUMBER(S):	CCA 60262/00
HEARING DATE(S):	10 September 2001
JUDGMENT DATE:	14 September 2001
PARTIES :	Regina Milos Zajac
JUDGMENT OF:	Sully J at 1; Carruthers AJ at 36

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0649
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	M. C. Grogan - Crown P. R. Boulten - Applicant
SOLICITORS:	S. E. O'Connor - Crown Watsons - Applicant
LEGISLATION CITED:	Drug Misuse & Trafficking Act 1985 (NSW)
CASES CITED:	Lowe v The Queen [1984] 154 CLR 606 R v Thomson and Houlton [2000] 49 NSWLR 383
DECISION:	Leave to appeal granted; appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60262/2000

SULLY J
CARRUTHERS AJ

REGINA v MILOS ZAJAC

JUDGMENT

1 THE COURT:

The applicant, Mr. Milos Zajac, seeks leave to appeal against the asserted severity of a sentence of imprisonment that was passed upon him on 2 July 2000 by his Honour Judge Goldring sitting in the Liverpool District Court.

2 On 8 November 1996 the applicant was arraigned in the District Court. He was charged with having supplied between 16 November 1994 and 21 March 1995 a prohibited drug namely cocaine. Such an offence contravenes section 25(1) of the Drug Misuse & Trafficking Act 1985 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 15 years.

3 The applicant, upon arraignment, pleaded not guilty. An estimate of 3 to 4 weeks was fixed for the projected trial. The trial was listed to commence on 16 February 1998. For reasons which are not clear, the trial did not then proceed. The applicant's trial was listed, subsequently, to commence on 5 April 1999 jointly with two co-offenders named Colin and Crawley. That trial date, also, was vacated. It is not quite clear from the evidence at present available why the further trial date was vacated; although subsequent events suggest that the reason was, at least in part, a projected application for separate trials of the applicant and of his co-offender Crawley.

4 Eventually, and on 1 October 1999 the co-offender Colin pleaded guilty. He was remanded for sentence to 19 January 2000. On that same day the applicant and the other co-offender Crawley, apparently adhering to their pleas of not guilty, were remanded to 7 October 1999 for the confirmation of a fresh trial date.

5 On 7 October 1999 the applicant and the co-offender Crawley both pleaded guilty. They, too, were remanded for sentence to 19 January 2000.

6 On 19 January 2000 the co-offender Colin was sentenced. It will be necessary to return presently to the details of that sentence, both at first instance and subsequently in the Court of Criminal Appeal. The applicant and the co-offender Crawley were remanded for sentence to 22 March 2000. On 22 March 2000 they were further remanded for sentence to 7 April 2000.

7 On 7 April 2000 the applicant and the co-offender Crawley came before Judge Goldring. The co-offender Crawley was represented by counsel; and the present applicant was represented by an experienced solicitor. The hearing seems, from the transcript of the proceedings, to have been brief and inconclusive. It seems that by 7 April 2000 the Crown had appealed against the asserted leniency of the sentence that had been passed upon the co-offender Colin on 19 January 2000. That circumstance raised the question whether the proceedings on sentence concerning the present applicant and the co-offender Crawley should stand over further until the appeal of Colin had been dealt with. In that connection the solicitor appearing for the present applicant pressed for the applicant's sentencing to be dealt with without further delay. In the course of so submitting, the applicant's solicitor said this:

"We took the view that parity was not an issue and that each matter would be dealt with by your Honour on merit and there is no reason to wait until June or July to be sentenced, particularly since the matter is of antiquity."

8 There was some brief disputation between Judge Goldring and the applicant's solicitor concerning the comparative culpability of the applicant and of the co-offender Colin. It is clear from the transcript that both Judge Goldring and the Crown Prosecutor then appearing were working upon an assumption that the co-offender Colin had been less culpable than the present applicant. The present applicant's solicitor submitted, in effect, that whatever might have been the comparative position based upon the evidence admitted in the sentencing proceedings of the co-offender Colin, it would be argued for the present applicant that the available evidence in connection with his separate sentencing would suggest that his culpability was less than that of the co-offender Colin.

9 In the event the sentencing of both the applicant and the co-offender Crawley was further stood over until 26 April 2000. On that day the relevant evidence was tendered; the relevant submissions were made on behalf of both offenders; and his Honour proceeded thereupon to pass sentence. It is not relevant for present purposes to be concerned with the detail of his Honour's approach to the sentencing of the co-offender Crawley.

10 The facts upon the basis of which Judge Goldring sentenced the applicant are set out as follows in his Honour's remarks on sentence:

"The circumstances are that Mr. Zajac occupied a house at Cremorne. He had a carpet cleaning business. His marriage had recently broken up and he was looking for people to share the house and as a result of that both Mr. Colin and Mr. Crawley lived in the house at Cremorne. There is no doubt that Mr. Zajac on occasions did supply small quantities of cocaine and was observed doing that; and that, also, telephone calls were made to his house on occasions by people who wished to purchase drugs from him. Mr. Crawley answered the telephone and passed on messages giving rise to the charges against him. Mr. Colin also took messages and that was part of the charge against him. Mr. Crawley differs from both Mr. Zajac and Mr. Colin in that he was never addicted to cocaine, and there is no evidence that he ever profited from his involvement in the supply of cocaine, either by way of cash or by way of having access to the drug. His involvement, it was suggested by [counsel] was at the lowest possible end of the scale and all that is alleged against him is that on two occasions he received messages and passed on information concerning the supply of drugs.
The facts tendered in relation to Mr. Zajac do show that he was knowingly involved in the supply of cocaine. The amount of cocaine involved is not of such a quantity as would lead to a more serious charge, and he is not charged with supply of a commercial or traffickable quantity. The evidence seems to be that, on a regular basis, however, he did supply cocaine to people who approached him for it. He did so by telephone and apparently he did so in a bar."

11 These findings by Judge Goldring need to be supplemented by some additional matters appearing in a Statement of Facts prepared for the assistance of the sentencing Judge by Det. Sgt. Henness.

12 It appears from that statement that between November 1994 and March 1995 the police carried out extensive surveillance of the activities of the present applicant; that surveillance including the interception of calls made to and from his mobile telephone. As a result of these police investigations, the applicant was arrested at his home on 20 March 1995. Located in a bedroom were several small clip-lock plastic bags. The applicant denied having supplied cocaine and refused, as was of course his right, to be interviewed further about the allegations.

13 The summary put forward by Det. Sgt. Henness is in the following terms:

"It is alleged that the accused supplied small amounts of cocaine between half a gram to 2 grams at a time to a small number of associates in and around the Neutral Bay and Cremorne area. It is estimated that an amount of cocaine in excess of the indictable quantity was supplied to associates by the accused."

14 The applicant's objective criminality, as derived from the foregoing materials, seems to us to be fairly set at the level of a low-level but established dealer in cocaine.

15 The applicant was born on 4 December 1946. He was, thus, aged some 54 years when he stood for sentence; and, broadly speaking, that is still his age. Judge Goldring took into account the fact of delay in the finalisation of the applicant's case; the steps which the applicant had apparently taken towards his rehabilitation from his cocaine addiction; the fact that he had spent two weeks in custody; and that from at least 1997 he had been suffering from a depressive illness and from alcohol abuse in addition to cocaine abuse.

16 Judge Goldring came to the conclusion that he could not properly deal with the applicant otherwise than by passing a sentence of full-time imprisonment. His Honour sentenced the applicant, accordingly, to imprisonment for 16 months with a non-parole period of 10 months. His Honour found special circumstances justifying such a reduction of the non-parole period from what would have been the normal non-parole period of 12 months.

17 The principal ground taken in support of the present application asserts that the applicant has a justifiable sense of grievance about the sentence thus passed upon him. The source of that justifiable sense of grievance is said to be the sentence passed upon the co-offender Colin.

18 As previously explained, Mr. Colin stood for sentence on 19 January 2000. He, too, had been arrested in March 1995. Judge Goldring stated at the outset of his Honour's remarks on sentence that Colin had never denied having sold cocaine; and that he had cooperated with the police from the time of his arrest. That stance, it is convenient to note at once, is one point of distinction between his case and that of the present applicant.

19 The facts found by Judge Goldring in connection with the sentencing of Colin were that at some time in 1994 or thereabouts he had taken a job at a restaurant in Neutral Bay called "The Café Royale". His Honour found that Colin, when he first took up that employment, was not aware that the restaurant "was a place where cocaine was supplied, mostly it would seem, by Mr. Zajac who was a regular patron at the restaurant, and who was there every day".

20 His Honour found that Colin had approached the present applicant for the purpose of renting a room which he had been told the applicant had available for rental. The applicant did in fact rent the room to Colin who moved into it about six months prior to his arrest in March 1995.

21 His Honour found that, thereafter, the present applicant had offered Colin cocaine; that Colin had found cocaine to his liking; and that he had subsequently developed an addiction which had reached, by the time of his ultimate arrest, a level where he was using about 3 grams a week. He purchased cocaine from the present applicant as and when he required it; becoming thereby indebted to the applicant both for rent and in connection with the supply of cocaine. Colin himself, the Judge found, supplied cocaine to various people on behalf of the present applicant and on days when the present applicant himself departed from his normal habit of going to the restaurant in the course of carrying on his own dealing in cocaine. On such occasions, the Judge found, the applicant would give small packages of cocaine to Colin so that the latter could pass it on, on the applicant's behalf, to regular customers of the applicant.

22 Judge Goldring found that in January 1995, at a time when the applicant was on holidays, Colin, being then in possession of the applicant's mobile phone, had arranged a purchase and subsequent supply of about 35 grams of cocaine. It was Colin's own contention, which Judge Goldring seems to have accepted, that he, Colin, had in fact not made money on that particular deal.

23 Judge Goldring did not deal, in his Honour's remarks on sentence, in any extended way with the subjective features of Colin's case. His Honour did note the delay that had occurred in bringing Colin's matter to finality; noted that Colin had stopped using cocaine, had obtained regular lawful employment, had developed a steady domestic relationship, and had changed his circle of friends. All of these things Judge Goldring saw as being significant indicators of rehabilitation. The Judge took into account, also, the various bail conditions that had been imposed upon Colin; not least of them being the surrender of his passport, that having had the consequence that Colin, himself born in France, had been unable to visit his parents in France or his brother in Vietnam.

24 Judge Goldring came to the conclusion that it would be appropriate to deal with Colin otherwise than by the imposition of a sentence of full-time imprisonment. To that end his Honour imposed a fine of $4,000 and ordered Colin to enter into a recognisance, himself in the sum of $5,000 without sureties, to be of good behaviour for a period of two years.

25 As previously explained, the Crown appealed to this Court against that penalty. That Crown appeal was allowed; the orders made by Judge Goldring were quashed; and Colin was sentenced to a period of imprisonment for 12 months, the same to be served by way of periodic detention.

26 The judgment of Adams J, which was the principal judgment delivered in the Court of Criminal Appeal, proceeds upon the same factual foundation as that accepted by Judge Goldring at first instance. Adams J, having reviewed the objective and subjective aspects of Colin's case, expressed the view that Judge Goldring had erred "in failing to give sufficient weight to the considerations of general deterrence which apply to this crime". His Honour proceeded to the following observations with which we respectfully agree:

"Although the respondent's involvement was almost at the lowest level, a very substantial superstructure of extremely dangerous criminal behaviour rests upon the willingness of people like him to sell in small quantities but over lengthy periods of time, to a wide-range of people the prohibited drug. The amounts of money collected go to finance criminals who are ruthless and dangerous. No society can long survive if it permits persons to make profits out of breaking the law. The social consequences of the criminal trade in prohibited drugs are very substantial indeed, including corruption, the undermining of legitimate businesses and a serious level of violence, including murder, these coming in the train of the trade in which the respondent played a minor but necessary role."

27 In my opinion those same strictures are applicable as much in the case of the present applicant as in that of his co-offender.

28 The end result reached by the Court of Criminal Appeal, that is to say a sentence of imprisonment to be served by periodic detention, was an end result reached in the context of the particular and well established constraints which are observed by the Court of Criminal Appeal when re-sentencing in the wake of a successful Crown appeal. I think that it is a fair inference from the whole of the judgment of Adams J, (Spigelman CJ and Newman J) concurring, that had it not been for those constraints, his Honour's view would have been that the co-offender Colin should have had passed upon him a sentence of full-time imprisonment.

29 Having compared the way in which, and the bases upon which, Judge Goldring dealt with the present applicant; and the way in which, and the bases upon which the Court of Criminal Appeal dealt with the co-offender Colin, we are wholly unpersuaded that the applicant is entitled to have this Court interfere with his sentence by reason of the principle of parity as laid down by the decision of the High Court of Australia in Lowe v The Queen [1984] 154 CLR 606. The applicant introduced his co-offender to the use of cocaine, itself an act, without more, of great culpability. Thereafter, he used his co-offender as an agent in his own cocaine dealing. The co-offender pleaded guilty at or immediately after the time of his arrest; the applicant did not. To suggest, as it seemed to us was being suggested by the submissions put for the applicant, that the applicant is somehow to be regarded as less culpable than his co-offender, is a proposition which, in our opinion, cannot stand with the unchallenged findings of fact made by Judge Goldring and by the Court of Criminal Appeal. In my opinion, a fair view of the evidence suggests that the applicant was the more culpable of the two. He was, in our opinion, correctly sentenced to a term of full-time imprisonment. We see no reason to reduce that term by reason of the parity point put forward in support of the present application.

30 A further submission was put in support of the present application, being a submission based upon the guideline judgment delivered in R v Thomson and Houlton [2000] 49 NSWLR 383. It is the case, as learned counsel for the present applicant submitted, that Judge Goldring made but a brief remark acknowledging that the applicant had ultimately pleaded guilty. It is true that his Honour did not embark upon a lengthy discussion of contrition and of what has come to be described routinely as "the utilitarian value of the plea". In connection with both of those aspects of the applicant's case, it seems to us that what is needed in order to do justice to the point now taken is not some contrived arithmetical calculation but a little robust common sense. The applicant was originally arrested on 20 March 1995. He did not plead guilty until 7 October 1999. Quite why it took him so long to plead guilty is not clear from the available evidence. That being so, we would not accept, without more, that the late plea of guilty was in any real sense an expression of remorse. As to "the utilitarian value of the plea", it is obvious and can be accepted at once that Court time and associated resources were saved, albeit the Crown case was, in our opinion, an extremely strong case. It is, however, important in our opinion to maintain steadily the proposition that the concept of "the utilitarian value of the plea" cannot properly be allowed to develop to a point where it becomes the perception of criminal offenders, and not least of all drug traffickers, that they can virtually walk away unscathed from the proper consequences of their offences, simply by entering a carefully calculated plea of guilty. The decision in Thomson and Houlton does not seem to us to require any contrary conclusion.

31 In our opinion this particular ground put forward in support of the present application has not been made good.

32 There remain two submissions advanced in support of the present application, and it is convenient to deal with both of them together. It is submitted that Judge Goldring paid insufficient regard to the delay between the arrest of the applicant and his sentencing. It is submitted, further, that Judge Goldring gave insufficient weight to the applicant's depressive illness.

33 As to both of these matters, it is once again the case that Judge Goldring's remarks were brief. It seems to us, however, that what his Honour had to say about these two matters, although brief, was adequate. His Honour was not required to provide lengthy analyses of the two points. Nor was his Honour required to embark upon some artificial arithmetical calculation with respect to the two points. What his Honour was required to do was to identify the points as relevant to the particular sentencing exercise which his Honour was carrying out; and then to bring the particular points fairly to account in carrying out an exercise which is, as has been affirmed repeatedly in decisions of this Court, an art and not a science.

34 For the whole of the foregoing reasons, we are of the opinion that cause has not been shown for the intervention of this Court.

35 We would grant leave to appeal and dismiss the appeal against sentence.

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