R v Niketic

• 5 -IN THE COURT OF CRIMINAL APPEAL 60075/02

WOOD CJ at CL HOWIE J SMART AJ

Wednesday 2 October 2002 Regina v Alexander Niketic Judgment 1 WOOD CJ at CL: This is an application for leave to appeal against the severity of a sentence of imprisonment for seven and a half years with a nonparole period of four and a half years imposed by His Honour Judge Gibson in the District Court, following the applicant's plea of guilty to one count of importing not less than a commercial quantity of, 3,4 methylenedioxymethamphetamine (ecstasy). The amount involved in the offence was 1.1953 kilograms pure ecstasy, that is, more than twice the commercial quantity, and the maximum penalty for it was life imprisonment and/or a fine of $750,000. 2 The applicant was arrested at Sydney Kingsford Smith Airport when found to be carrying, strapped to his person, two plastic bags containing in all 9,865 ecstasy tablets with a street value of approximately $690,550. The applicant declined to be interviewed when arrested and has made no subsequent disclosure in relation to the origin of the drugs or in relation to his precise role in their importation, save so far as he offered a version of facts to the author of the pre-sentence report and to Dr Carne, a consultant forensic psychiatrist. 3 That version, as recorded in the pre-sentence report and repeated in substance in Dr Carne's report, was to the following effect: "Mr Niketic's description of the offence was one of opportunistic behaviour. He indicated that he was on holiday in Bali, when he was approached by a young man in a disco who suggested that he take ecstasy tablets into Australia. He stated that it seemed 'so...unbelievable and easy', and the prospect of earning $10,000 was attractive to him. Mr Niketic admits that he was not in financially dire straits at the time the offence was committed. He says that at the time he was able to explain away his behaviour, in that he was not stealing from anyone or hurting anyone. He now says that he was 'not thinking properly', and is able to articulate how some individuals might have been damaged by his behaviour. He says that he behaved 'stupidly' and that he regrets this behaviour." 4 As the applicant did not give evidence in the sentencing proceedings, the Crown has not had the opportunity to test that account, and for the reasons discussed in R v Palu [2002] NSWCCA 2001 and R v Qutami [2001] NSWCCA 353, it must be given limited weight. I would add my voice to the dissatisfaction expressed in those decisions in relation to the wholly unsatisfactory practice whereby facts of relevance to an assessment of the role of an offender are sought to be proved through histories provided to third parties, which cannot then be tested. If the applicant sought to establish that his role was that of a courier, then he bore the onus of establishing that, albeit on the balance of probabilities: Olbrich v The Queen (1999) 199 CLR 270 at 281. 5 I am not persuaded in those circumstances that his Honour had any choice other than to find, as he did, that it was impossible to determine what role the applicant played beyond the fact of being the person who imported the drugs. Plea of guilty

6 The applicant submits, first, that his Honour failed to give sufficient weight to the plea of guilty, which was entered at committal. In that regard his Honour said: "I take into consideration his plea as exhibiting some evidence of remorse, although he has not put any such evidence before me, other than the plea, and of course this Crown case was a very strong Crown case in relation to the matter, but I accept that it has some evidence and he is of course entitled to a discount in relation to the utilitarian value of his plea. In the particular circumstances of the case I assess [that] at fifteen percent."

7 The error which it is said appears on the face of the record relates, first, to the absence of any reference to those portions of the report of Dr Jonathan Carne, where he noted that:

(i) the applicant "was so ashamed of his charges that he had been unable to tell friends or family until recently"; (ii) he "seemed ashamed" and "appeared remorseful about his offending"; and that (iii) he " accepted full responsibility for his offending and was prepared to undertake whatever punishment was handed down "; and secondly, to the absence of similar observations in the pre-sentence report to the effect that: (i) the applicant " has found it difficult to inform his family of his whereabouts and the nature of his offence "; and (ii) "it seems that he is deeply ashamed of his behaviour and fears their reactions ".

8 Absent direct evidence from the applicant indicative of true remorse, that is, for the commission of the offence, which is quite separate from self-concern or embarrassment in relation to family, I am quite unpersuaded that his Honour fell into error or that any greater discount than that given was required in relation to the plea of guilty.

HIV status 9 It was next submitted that his Honour did not give sufficient consideration to the HIV status of the applicant, or to the problems which might arise in relation to his treatment while in custody, if and when, he is placed on antiretroviral therapy. In this regard his Honour observed: "I have read the probation report and the report in particular of Dr Stewart. Subjectively he is a man who unfortunately suffers from HIV. Now the report from the doctor would indicate that it is no longer or it is not at present active and has not been for some years, although the doctor has not seen him for some few years. It may, and probably will, although not necessarily, become active in the future and it is of course important that his condition be monitored by the authorities in relation to this matter." 10 The only evidence in relation to this aspect of the applicant's case was that of Dr Graham Stewart, in a report which was in the following terms: "Alex was first referred to me in April 1999 for evaluation of known HIV infection. I saw him on three subsequent occasions, the last in November 1999.

Throughout that period he remained well with no symptoms attributable to HIV infection.

I did not start him on antiretroviral therapy as the two important blood tests used to decide when to commence this treatment (CD4+ T cell count and viral load) did not indicate a need at that time for such treatment.

It is likely that there has been a decrease in his immune function (as measured by CD4+ T cell count) and an increase in the amount of virus in his body (as measured by plasma viral load) in the two years since I last saw him. It is also possible that he has reached a point where it is appropriate for him to commence antiviral (sic) treatment. It is, therefore, important that he is assessed by a specialist in the field and it is my advice in this circumstance that this assessment be repeated every four months or more frequently when he gets closer to the point of commencing treatment. It is all but certain that he will eventually start such therapy and when he does monitoring of its benefits and the significant side effects will require even more close medical attention, initially with monthly assessment and, if all going well, this extending out to assessment every two months." 11 This report was not updated and there was no evidence placed before his Honour to suggest that the applicant's medical condition cannot be properly monitored and treated while he is in custody, or otherwise to suggest that the serving of a sentence by him would impose additional hardship, that is, a hardship beyond that experienced by other prisoners. 12 The report of Dr Stewart in fact fell well short of establishing that there had been any deterioration in the applicant's condition and it certainly did not support the submission made by the applicant, in writing, that "as at October 2001, there was a demonstrable deterioration in the applicant's health as measured by his T cell count". 13 I am not persuaded that his Honour misinterpreted the report or that he failed to give sufficient regard to the applicant's medical condition. The relevant sentencing principles in this regard are well known, being expressed, for example, in R v Smith (1987) 44 SASR 587 at 589, R v Bailey (1988) 35 A Crim R 458, R v McDonald (1988) 38 A Crim R 470, and more recently in R v L NSWCCA 17 June 1996 where the Court observed: "The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require. It is the responsibility of the Executive to provide for the care and treatment of its prisoners: R v Vachalec (1981) 1 NSWLR 351, per Street CJ at 353-4. If a prisoners' condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds, the Executive is empowered to deal with the situation. S 53 of the Sentencing Act 1989 preserves the Royal prerogative of mercy, and s 25A(1) of the Act enables the Offenders' Review Board to grant parole at any time if the prisoner is dying or there are other 'exceptional extenuating circumstances': R v Jones (1993) 70 A Crim R 449, per Carruthers J at 457";

and added: "A court cannot determine the bearing which an offender's illness might have upon sentence in the absence of adequate evidence as to the nature and extent of the illness and, where appropriate, its effect upon the conditions of the offender's incarceration. In the cases above referred to, [Smith, Bailey and McDonald] there was ample evidence of those matters. In this case there was not." 14 It seems to me that, at its highest, the applicant's case depends upon an argument that the anxiety which would attach to his HIV status, an anxiety which I observe would exist whether he was in custody or not, would create special stresses over and beyond those attaching to an offender who is not so affected. Of that there was no evidence before his Honour, and there was no basis for his Honour to have reached the conclusion which is now advanced on behalf of the applicant. 15 It may be observed that for all prisoners there is a stress associated with imprisonment, and there are obvious problems, absent clear and specific evidence, in attempting any differentiation between the causes for such stressors, and the level of anxiety or the consequences attaching thereto, when pronouncing sentence. 16 In the light of the principles cited, and in the absence of proper evidence, I am unpersuaded that error has been shown, or that the factor of ill health was not adequately taken into account, particularly in relation to the nonparole period which was in the order of 60 per cent of the head sentence, itself well within the range suggested in R v Bernier (1998) 101 A Crim R 44. 17 Otherwise, the case is one in which the applicant must fail unless he can show that some sentence, other than that imposed, was warranted and should have been imposed. Having regard to the sentencing pattern in relation to ecstasy offences, and to the need for a significant element of deterrence in the sentencing of those who import such drugs, as noted in decisions such as R v Bourel NSWCCA 11 December 1998, and R v Budiman (1999) 102 A Crim R 411, I am unpersuaded that error has been shown. 18 I would grant leave to appeal, but I would dismiss the appeal.

19 HOWIE J: I agree. 20 SMART AJ: I also agree. 21 WOOD CJ AT CL: The order of the Court will therefore be as I proposed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.