Stephen Lapic v The Queen

[2005] ACTCA 40

STEPHEN LAPIC v THE QUEEN
[2005] ACTCA 40 (31 OCTOBER 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 32-2005
No. SCC 26 of 2005

Judges:         Higgins CJ, Gray and Madgwick JJ
Court of Appeal of the Australian Capital Territory
Date:            31 October 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 32-2005 
  )          No. SCC 26 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: STEPHEN LAPIC

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  31 October 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 32-2005 
  )          No. SCC 26 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN LAPIC

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  31 October 2005
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. I think Mr Ibbotson, who appeared for the appellant, has urged upon the court everything that could possibly be said, but the impression that remains with me is that the learned sentencing judge imposed a sentence, the head sentence of which is conceded to have been well within the bounds of reasonableness.  In fact, more could have been imposed without it being unreasonable.  The cavil is with the 12 months’ period of unsuspended imprisonment.  For my part, I find it difficult to see how less could be warranted in the circumstances.  There was clearly a commercially constructed marijuana-growing operation, in which the participation of the appellant was such that, first of all, he could have no doubt about the drug’s commercial quality.  Second, he expected, though perhaps not with any precision as to the amount he would get, to participate in the profits.  The fact that he had some personal health problems that led to him being, perhaps, a susceptible individual, does not seem to me to allow any greater degree of mitigation than was given.  For my part I cannot see any ground upon which this appeal can succeed, and I would dismiss it accordingly.

   I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Chief Justice.

   Associate:

   Date:     1 December 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 32-2005 
  )          No. SCC 26 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN LAPIC

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  31 October 2005
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I agree.

   I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Hon Justice Gray.

   Associate:

   Date:     1 December 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 32-2005 
  )          No. SCC 26 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN LAPIC

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  31 October 2005
Place:  Canberra

REASONS FOR JUDGMENT

MADGWICK J:

1. I agree.  I just add this.  The principal legal peg upon which counsel for the prisoner invited the court to re-sentence was said to be an error of principle made by the sentencing judge.  The key passage in his Honour’s remarks on sentence is as follows:

I regard this as a serious offence.  I regard this as serious [commercial] cannabis growing by way of hydroponic operation in residential premises in the ACT.  It seems to me that you [came] to the ACT with the purpose of being engaged in commercial hydroponic cannabis growing.  It further reinforces the view that this is an upper end sentencing matter.

It was said in mitigation in relation to the evidence of Mr Fulger, a forensic psychologist, that in Mr Fulger’s view you could be seen as the patsy in this operation because you’ve been lured to Canberra by others on the promise of commercial gain.  It is appropriate in certain circumstances for sentencing courts to take that into account as a mitigating circumstance particularly when, as it were, the smaller fish in a drug operation assist police.  But it seems to me that when it’s put as a mitigating factor, I was just the patsy, there were others who were behind this operation, I’m entitled to give that little weight at all in circumstances where a person says in the witness box, I don’t want to tell you anything more about that.

If his Honour should correctly be understood as having said that, where a person who claims to be ‘a smaller fish in a drug operation’ but declines otherwise to assist the police, the Court should not accept the claim that he or she was the player of a minor role on that account, then it seems to me that would indeed be a mistake.  It is well-known that there are serious practical reasons why very often one criminal will not give up his co-conspirators and will not say anything that might tend to their identification. 

1. Whether in those remarks, in context, that is what his Honour was saying need not be finally decided because, were we to re-sentence, it is inescapable that we would impose no less than did his Honour, both as to head sentence and, in my view, as to effective time served.

1. In the latter regard, it may be noted that a prisoner is in a better position by way of having part of his or her sentence suspended than by being given a non-parole period because, in the latter case, he or she might not satisfy the parole authorities, for one reason or another, that the parole should in fact be granted.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Madgwick.

Associate:

Date:     1 December 2005

Counsel for the Appellant:  Mr J Ibbotson
Solicitor for the Appellant:  Hill & Rummery
Counsel for the Respondent:  Mr R Refshauge
Solicitor for the Respondent:  Director of Public Prosecutions (ACT)
Date of hearing:  31 October 2005
Date of judgment:  31 October 2005