R v Popovski [2008] ACTSC 94

Supreme Court of the ACT|2008-09-11|Before: Rares J

The accused appear before the Court on 30 July 2009 at 9.30am for a directions hearing and in relation to obtaining a pre-sentence report.
The accused appear before the Court on Thursday 10 September 2009 to be sentenced for the offence.
Pursuant to s 27(2) of the Crimes Sentencing Act 2005 (ACT), sentence be deferred for 12 months until 10 September 2009 on the conditions that the accused:

(a) accept the supervision of the Executive Director of ACT Corrective Services (or his delegate);

(b) undertake urinalysis testing from time to time as directed by the Executive Director of ACT Corrective Services (or his delegate);

(c) undertake counselling/treatment/programs deemed appropriate by the Executive Director of ACT Corrective Services (or his delegate) including any recommended for the management of drug issues.

The accused be granted bail on the condition that he complies with the conditions in Orders 1, 2 and 3 above.
The accused report today, as soon as reasonably possible, to ACT Corrective Services for the purposes of placing himself under its supervision.
The first count in the indictment be dismissed.
The order undertaking and conditions for bail be corrected by changing:
- (a) the offence so as to record "Possessing a drug of dependence, namely, cocaine" and to delete "Traffici [sic] in a Controlled Drug other than Cannabis";
- (b) bail conditions 1-3 be deleted and there be substituted conditions (a), (b) and (c) in Order 3 above;
- (c) bail condition 4 be deleted and there be substituted Order 5 above.

(see also R v Slovoc Popovski (No 2) [2008] ACTSC 95, 12 September 2008)

1. Mr Popovski you have obviously realised that your conduct in entering into a relationship with people who are using drugs, whether recreationally or more seriously for their own use has blighted your life, and blighted your family's life. It has brought shame on you, and it has brought shame on your mother and on your sister.

2. Your mother worked very hard, no doubt, to give you the opportunities in life which you have, and having heard the evidence before me today, I am satisfied that you have obviously made a mistake, which you understand to have been a mistake. But, the quantity of drug that you were caught with and arrested and charged for, is a very large amount of drugs, and while you may have been able to afford it, if it were not for the circumstances of this offence you may have been looking to be in gaol this afternoon. It was just an act of stupidity to stay involved in drugs.

3. You have seen through your own involvement that your use escalated from cannabis on a casual basis, through other forms, until you started to use a very serious drug and for a considerable period. If you were not stopped and caught, you would have continued.

4. Now I have heard the evidence from both the corrective services officer Mr Nocka, from your friend Mr Ginna, and Mr Grant your employer, that you are remorseful for doing what you have done. And you are apparently making very great efforts to turn the corner.

5. You have an opportunity to build a future for yourself and your family, and I see from the material in front of me, that one of the careers you wish to pursue, or to have the opportunity of pursuing, is in law enforcement and customs.

6. And, as I have said to counsel, if I immediately deal with your matter today, I think I would probably have to impose a conviction, because of the seriousness of the offence, the amount of the drug you were caught with, and what the community would expect as a fair and proper punishment for you to suffer, just as other people who might be caught with that quantity would also suffer.

7. But it seems to me that if I did that I may be imposing a punishment on you at a stage in your life which would have an impact that would last far longer than it may on other persons whose life is much more solidified in their career paths and choices. The evidence suggests that you have now decided to reform yourself and to get away from the drug scene, and stay away from it. In a year's time when you come back before the court, if that is established then that would be very substantial grounds for re-considering whether a conviction would be appropriate.

8. So it seems to me that you understand your criminality. And you understand that one of the sentencing possibilities you face for a charge of this nature is that you could go to prison, particularly given the amount of the substance that you were found with when you were arrested.

9. And if you do anything more in this area or take any more drugs and are detected, or arrested, that would obviously be looked at in light of this apparently very serious offence. I say "apparently" in the sense that when I looked at the charge before I came into court, it appeared to me, and clearly it is, a serious offence for anybody to have such a large quantity of cocaine, even though it is for your own use, as is accepted by the Crown and as the evidence establishes.

10. So, what I am proposing to do is to defer passing sentence on you for a period of 12 months, but I will order that you appear again before the court for a directions hearing about on Thursday 30 July 2009 at 9.30 am with a view to obtaining a further pre-sentence report in respect of your compliance with the conditions which I have decided to impose on you to warrant the deferring of the sentence.

11. I have in mind, in light of the submissions that have been made, imposing an order that you be of good behaviour for a period of two years.

12. In the event that you are able to demonstrate on the further occasion that your conduct has merited it, the court may give consideration to not recording a conviction against you, so that you will be able to pursue the career you currently wish so as not to have your life blighted or ruined, potentially in terms of career choices, by this act of stupidity of yours and your conduct. And it is not just stupid, it is obviously a serious offence.

13. So I will order that, under s 27(2) of the Crimes (Sentencing) Act 2005 (ACT), you appear before the court on Thursday 30 July 2009 at 9.30 am for a directions hearing, with a view to obtaining a pre-sentence report, and that you appear to be sentenced for the offence on Thursday 10 September 2009.

14. I impose the following conditions, so as to provide you with an opportunity to address your criminal behaviour, and anything that contributed to it, prior to sentencing you:

(1) that you accept the supervision of the Executive Director of ACT Corrective Services or his Delegate, and obey all reasonable directions;

(2) undertake urinalysis testing from time to time as directed, by the Executive Director or his delegate.

(3) undertake such counselling or treatment program, or programs as are deemed and are considered appropriate by the Executive Director or his delegate including any that are recommended that you undertake for the management of drug issues.

15. I note that in the pre-sentence report a deferred sentence was not recommended as an appropriate option, however, for the reasons that I have expressed, I regard it as being important to afford Mr Popovski an opportunity to avoid what would otherwise be the consequence of his wrong-doing, namely the recording of a conviction against his name. In that event, he may be able to satisfy the court when he returns to be sentenced, as to the matters which would warrant the Court proceeding to place him on a good behaviour order without recording such a conviction.

16. I grant bail to the accused on condition that he appear at the directions hearing on 30 July 2009, and at the hearing for sentence on 10 September 2009 and I direct him to comply with each of the three conditions that I imposed in respect of the order deferring his sentence.

17. I order you to report today, as soon as reasonably possible to ACT Corrective Services for the purposes of placing yourself under their supervision.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Solicitor for the Crown: Director of the Public Prosecution for the ACT

(Sentencing) Act 2005

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