R v Djukic [2010] VSCA 65

GAS v R [2004] HCA 22; (2004) 217 CLR 198 considered.

1 As Bongiorno JA explains, the way in which this matter was presented to the judge below was quite unsatisfactory. The issue which was agitated on the appeal could and should have been avoided. What was said for the Crown to have been the agreement between the Crown and the appellant's solicitor as to the way in which the matter would be presented on the plea should have been properly recorded. To make the alleged agreement coincide with the presentment, I think that at least counts 1 and 2 should have been framed on a 'between dates' basis.

2 Because the matter was not put before the judge in a satisfactory way, the basis upon which forfeiture of the seized drugs, money, and other implements could possibly be justified by reference to the presentment and to ss 33 and 78 of the Confiscation Act 1997(Vic), was not explored. I am at least very doubtful that, had the issue been agitated, any basis would have been disclosed - as the presentment stood - for the judge making the orders which she did. In that event, it is near certain that the Crown would have successfully applied to expand counts 1 and 2. That would have given the judge a clear basis for making the findings which were impugned in this Court - though perhaps in less florid language; and for making the forfeiture orders.

3 In fact, however, the matter was treated below, by counsel for the appellant and the Crown, as if at least counts 1 and 2 were framed on a 'between dates' basis. No objection was taken to the Crown's application for forfeiture orders, and appellant's counsel sought to rely in mitigation upon his client having been caught up in a course of drug trafficking to feed a serious drug habit. Attention was not focused upon the confined nature of the counts on the presentment.

4 I consider, in the particular circumstances, that the appellant should not now be permitted to advance argument which departs from the basis upon which the plea proceeded and upon which he was sentenced. To permit such a thing to occur would be inconsistent with the principle that the conduct of the parties at trial or on

a plea should ordinarily confine the scope of any appeal.

5 For these reasons, which in many respects accord with the reasons of Bongiorno JA, I also would dismiss this appeal.

6 Jovica Djukic was presented before the County Court at Melbourne on four counts of drug trafficking. He pleaded guilty to all four counts. Counts 1 and 2 alleged trafficking of heroin and methylamphetamine on 19 February 2006. Counts 3 and 4 alleged trafficking in methylamphetamine and ecstasy on 9 June 2006.

7 On the date of the first two offences, Djukic was arrested in Chapel Street, Windsor and found to be in possession of a number of small plastic bags containing white powder inside a cigarette packet. In his motor vehicle, police also found about $70 in coins and, more significantly, $5,900 in cash in the glove box, mobile phones and other money in his pockets. The execution of a search warrant on a hotel room in the city occupied by him on that day yielded three plastic bags of white powder, tools used for compressing powder into solid form and a number of small freezer bags commonly used by drug dealers for the packaging of drugs for sale. Djukic was charged and released on bail. An analysis of the seized powders identified them as 56.4gm of heroin of less than 0.4 per cent purity and 33.9gm of methylamphetamine of between 12 per cent and 16 per cent purity.

8 On 9 June in the same year, whilst still on bail, Djukic was arrested again. He had been driving erratically on the Monash Freeway at Endeavour Hills when he came to police attention. A search of his vehicle on this occasion yielded 15 small deal bags containing what turned out to be ecstasy tablets (5gm MDMA of 25 per cent purity) and rock amphetamine (12.2gm methylamphetamine of 20 per cent purity). Again, he was charged and remanded in custody. On 8 February 2007, he was bailed again, a condition of his bail on this occasion being that he undergo regular urine screening. Subsequently, he took part in various drug rehabilitation

programmes. As the sentencing judge noted, urine screens taken whilst the appellant was in custody in September 2006 and in March and August 2007 were all negative.

9 Before the sentencing Court, the appellant admitted a number of prior convictions, including convictions for possession and trafficking of heroin as far back as 1992 for which he had been sentenced to imprisonment. In 2000, he served a term of imprisonment of four years for trafficking in heroin. It was also said that he had a longstanding addiction to heroin and a gambling habit which contributed to his offending.

10 In sentencing the appellant, the sentencing judge took into account his personal circumstances, but she expressed considerable scepticism as to the extent of his drug addiction and to his claim that he had engaged in drug dealing mainly to finance his own purchase of drugs. She preferred an interpretation of the facts that was more consistent with his having been engaged in a 'sophisticated and carefully managed operation of drug dealing'. She did not accept that he had a very heavy addiction to heroin and that that impacted on his moral culpability in respect of these offences or on any assessment of his prospects for rehabilitation. She noted that with respect to the third and fourth counts on the presentment, the offences were committed whilst he was on bail, thereby enlivening s 16(3C) of the Sentencing Act 1991 which, prima facie, requires any sentences imposed for such offences to be served cumulatively upon any other sentence imposed or being served.

11 Her Honour took into account various mitigatory factors, among which, despite her earlier expressed scepticism about his addiction, she mentioned that the appellant was apparently drug-free and was continuing to have counselling. Her Honour allowed a considerable discount for Djukic's early pleas of guilty and made orders for cumulation, somewhat less than would be required were she to have applied s 16(3C) of the Sentencing Act in its full rigour. She sentenced the appellant to four years, three years, two years and one year imprisonment on counts 1 to 4, respectively. With orders for some cumulation a total effective sentence of six years' imprisonment was arrived at. Her Honour imposed a four year minimum term.

12 The appellant was granted leave to appeal his sentence on 28 August 2009 and, pursuant to that leave, filed a full statement of his grounds of appeal containing three grounds. However, at the commencement of the hearing of the appeal, his counsel said that his argument would be confined to a complaint that the trial judge took a view of the appellant's criminality which was not open having regard to the framing of the offences in counts 1 and 2 on the presentment to which he pleaded guilty.

13 The appellant's argument was simple: the trial judge inappropriately found that the appellant was primarily trafficking for profit and that he was running a fairly sophisticated and carefully managed operation which involved substantial sums of money. In doing so, so the argument went, her Honour went beyond the criminality to which the accused had pleaded guilty, relying upon facts which must have related to conduct by the appellant on occasions other than those comprehended by counts 1 and 2. That is to say, her findings must have been concerned with events that occurred on days prior to 19 February 2006 - the date alleged in those two counts on the presentment. Counsel submitted that her Honour's conclusions and the sentences based upon them could have been justified only if the two relevant counts had in fact been 'Giretti' counts as that term has come to be understood in the criminal law.[1] A 'Giretti' count is one which alleges trafficking in a drug of dependence between two fixed dates, as distinct from a count which relates only to a specific date.

14 On the plea before the County Court, the prosecutor opened the Crown case by tendering a document entitled 'Summary of the Prosecution Opening'. He then read that document virtually verbatim, to the Court. It described the circumstances in which the appellant was arrested in respect of the events referable to counts 1 and 2 and counts 3 and 4 respectively, his actions at relevant times, what was found in his possession on each of those occasions, the analysis of each of the drugs found and the maximum penalties for the offences charged.

15 The prosecutor tendered certificates of analysis of the drugs seized and subsequently sought and obtained orders pursuant to s 33(1) and 78(1) of the Confiscation Act 1997 in respect of the money found in the accused's possession when he was arrested on 19 February 2006 and the drugs and other drug paraphernalia found on that date and on 9 June 2006 in his car and in his hotel room. These orders were not opposed by the appellant and were granted by her Honour without any material before the Court other than the documents referred to and the implied admission by the appellant that he had no answer to the Crown's claim for such orders.

16 The order under s 33(1) of the Confiscation Act 1997 required a finding by the Court that the $5,900, the other money and the mobile telephones seized by the police on 19 February 2006 was tainted property in relation to an offence of which the appellant had been convicted. In fact here the sentencing judge specified all four of the offences to which the appellant pleaded guilty as 'the offence' to which the tainted property related. As the property referred to in the order (including the money) was seized by police months before the June offences (counts 3 and 4) were committed this was a mistake on her Honour's part - but not a material mistake. The convictions on counts 1 and 2 were sufficient to support the order.

17 Tainted property is defined in s 3 of the Confiscation Act 1997 as being property which falls into at least one of six specified categories. Although the forfeiture order signed by the sentencing judge did not describe the property seized other than as 'tainted property', it is an appropriate inference from all the circumstances that the mobile phones fell within paragraph (a) of the definition, being property that:

(a) was used, was intended by the defendant to be used in, or in connection with, the commission of the offence; ....

And the money found in the glove box of Djukic's car fell within paragraph (c), being money which:

(c) was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence ...

18 It is an inescapable inference from the way in which the forfeiture order was made, the appellant's acquiescence in it without comment and the total lack of complaint or argument concerning the property affected by it, that it was common ground between the parties that the money and the mobile phones were intimately connected with the offences for which the appellant was to be sentenced. The same can be said for the disposal order under s 78(1) of the Confiscation Act 1997 which related to the drugs and associated paraphernalia seized from the appellant on his arrest on both occasions. That order was made also without opposition, identically to the s 33(1) order.

19 During the plea in mitigation his counsel emphasised Djukic's addiction to heroin and his attempts at rehabilitation and asserted that he was trafficking heroin to support his own habit at the time of each of these offences. He spoke of the appellant's family situation and that the money he received for drug trafficking went to support a lavish lifestyle - he described it as a 'party lifestyle'. The appellant's counsel did not put any evidence before the Court as to these matters despite a clear indication from the judge that she would not act on his submissions as to the appellant's drug addiction unless he did.

20 At no stage during the plea did the appellant's counsel make any submissions which suggested that the trial judge should be confined, for sentencing purposes or for the purposes of confiscation or disposal orders, to drug trafficking by his client only on each of the two dates referred to in the presentment. It was common ground that the appellant was engaged in an ongoing business of drug trafficking. His counsel described him as a drug trafficker, although he sought to minimise his client's criminality by reference to his trafficking being 'not at the high end of distribution and supply. It was at the bottom end in the street level of dealer sell (sic)'.

21 Section 71C of the Drugs, Poisons and Controlled Substances Act 1981 proscribes the trafficking in drugs of addiction. It imposes a maximum sentence of 15 years' imprisonment for the offence. As Crockett J recognised in R v Giretti[2] the term 'trafficking' generally connotes a continuing activity. The word 'trafficking' itself is apt to describe such activity. But a single incident in relation to one person may constitute trafficking: Molyneux v MacPherson;[3] Falconer v Pedersen[4] and, of course, having regard to the extended definition of 'traffick' in s 70 of the Act, merely being in possession of a drug of dependence for the purpose of sale constitutes trafficking.

22 Here, the Crown case was partly a circumstantial one. Although the police found the appellant in possession of drugs on each of the occasions referred to in counts 1-4, that they were in his possession for sale was an inference from the surrounding circumstances - the money, the deal bags, the mobile phones, the hotel booking et cetera, associated with him. Such circumstances not only proved trafficking within the extended meaning provided by s 70 of the Act, but also established trafficking in its ordinary sense. Further, in any event, by pleading guilty, the appellant admitted all of the elements of trafficking necessary to constitute the s 71(AC) offence charged in each count.

23 Counsel for the respondent informed this Court that the appellant had pleaded guilty or indicated his intention to do so soon after his arrest and so, in accordance with prosecution practice, the case was 'fast tracked' and the presentment drafted in the way it was. He said that there was never any argument between the parties as to the Crown case to which the accused would plead guilty. His submissions in this respect were not contested by the appellant's counsel.

24 Before the trial judge, no objection was taken as to the Crown opening being the factual basis upon which the appellant was to be sentenced and it was never suggested by his counsel that her Honour was confined in any way to acts of trafficking by the appellant which took place on the dates mentioned in each of the counts. Had there been any such argument, the Crown could have sought appropriate amendments to the presentment to ensure that the criminality of the appellant was amply demonstrated for sentencing purposes. The power to amend a presentment in s 372(1) of the Crimes Act 1958[5] is fettered only by the need to ensure that any amendment will not cause injustice to an accused person: R v Power;[6] R v Hoser.[7] An amendment in this case to put beyond doubt the temporal extent of the appellant's criminality would not have been unfair or an injustice to him.

25 The trial judge was entitled to sentence the appellant on the Crown case as presented and accepted by the appellant. The question remaining was whether it was open to her Honour to make the factual findings which she did in sentencing him as she did.

26 The principal complaint made as to her Honour's findings of fact relate to those contained in paragraph 37 of her sentencing remarks. In particular, complaint is made of her having found that the appellant was -

... running a fairly sophisticated and carefully managed operation through which you traffick drugs and handle substantial sums of money, all of which I expect helped you meet the expenses associated with the trafficking operation, as well as to fund a lifestyle beyond that available to a person in receipt of a disability pension.

27 Whilst there is a degree of subjectivity in her Honour's use of the adjectival phrases 'fairly sophisticated' and 'carefully managed', the drugs and other items found in the appellant's possession justify a finding that he engaged in a drug trafficking operation of more than the street variety. The sum of money found on him when he was arrested in February was substantial and the fact that it was still in the glove box of his vehicle suggests it had been acquired relatively recently - pointing to significant business, at least immediately before he was arrested. Whether it was sophisticated or carefully managed is of little or no consequence.

28 There can be no criticism of her Honour's findings. Nor can there be any criticism of her Honour's other findings of fact upon which she sentenced to which reference has already been made. She was entitled to reject the appellant's case that he was a drug addict, she gave appropriate recognition to the appellant's pleas of guilty and refrained from applying the full rigour of s 16(3C) of the Sentencing Act 1991. Having regard to the appellant's antecedents and, in particular, to his prior convictions for serious drug trafficking, neither the total effective sentence imposed by her Honour nor any of the individual sentences nor the non-parole period was affected by appellable error or, in any sense, manifestly excessive.

29 It would have been preferable if the factual basis on which the appellant was to be sentenced and to which he pleaded guilty had been the subject of clear agreement, recorded in writing, between his lawyers and those for the prosecution. The High Court recommended such a course in GAS v R[8] in unmistakable terms. It reduces the scope for misunderstanding the basis upon which an accused person pleaded guilty and places the trial judge in a position of certainty as to the basis upon which sentences should be passed. However, in this case, notwithstanding the lack of such a written agreement there can be no doubt as to the facts admitted by the appellant and the agreed basis upon which his case before the sentencing judge was conducted. This appeal should be dismissed.

[1] R v Giretti (1986) 24 A Crim R 112.

[2] (1986) 24 A Crim R 112, 118.

[3] (1902) 23 ALT 228.

[4] [1974] VicRp 24; (1974) VR 185, 187-8 (Anderson J).

[5] Now s 165(1) Criminal Procedure Act 2009.

[6] [1960] VicRp 60; (1960) VR 373 (FC).

[7] (1998) 2 VR 535, 539 (Winneke P).

[8] [2004] HCA 22; (2004) 217 CLR 198, 214-5 (The Court).