R v Popovski [2009] ACTSC 131

2. At the time of his arrest and charge on 12 August 2007, the accused was 22 years old. On the previous day, the police had obtained search warrants in relation to the accused and a motor vehicle in which he was found in the next day, a Sunday, at about 4.50pm. The accused was in the passenger seat of the vehicle. On executing the search warrant on the accused, the police found on his person a clear plastic bag containing 6.010 grams of cocaine, a trafficable quantity. He was arrested and appeared in the Magistrates Court the next day where he was granted bail.

3. The prosecution has accepted that the sole reason for the accused being in possession of that trafficable quantity, a large amount of cocaine, was for his own personal use and that there was no suggestion that he was engaged in any other activity with the cocaine. On that acceptance, he was able to offer the plea of guilty in answer to the whole of the indictment, that had previously included a count of trafficking under section 603(7) of the Criminal Code 2002 (ACT), which is no longer pursued.

4. I made a deferred sentence order when the accused had appeared before me for sentence on 11 September 2008: see R v Slavco Popovski [2008] ACTSC 94. On that occasion I indicated that I had in mind that today I would consider the degree of compliance by the accused with the conditions of the deferred sentence order, with a view to imposing an order that he be of good behaviour for a period of two years. One issue that had been raised at that time, that again features today, is whether I should enter a conviction and thereby adversely affect the accused's chances of pursuing a career for which he has ambitions in the customs or law enforcement area.

5. The accused was born in Bitola, Macedonia, in 1985 and came to this country with his parents and older sister, six years later. They were searching for a more stable life than in the former Yugoslavia, which at that time was undergoing considerable and detrimental civil war-like activity. The accused's parents separated when he was 10 years old, but he maintained good relations with, and continues to respect, both of them. He has a close relationship with his sister.

6. He told the ACT Corrective Services probation officer for the pre sentence report last year that although it was always tough after his parents had separated, his mother did the best for her children, taught them good morals and immersed them in their heritage and culture. He continued to reside with his mother and sister and the mother's new partner of four years. The account of the accused's circumstances that I am giving here, is taken largely from that report, which has been accepted by the parties as correct.

7. The accused's mother worked two jobs in order to meet the family's financial commitments after the separation. Once the accused completed his higher school certificate, he went to work to support his mother and sister and completed a business management certificate IV at the Canberra Institute of Technology and a certificate 3 in security together with a senior first aid certificate. He held ambitions to pursue a career in the Australian Customs Service.

8. He had been employed in the retail and cleaning industries and in 2003 began employment as a renderer, working in that position until 2004. Then he worked in a sports marketing position until 2006 when he returned to rendering, working at the time of the last hearing in a supervisory position. His then employer, Paul Grant, gave evidence that he was aware of the circumstances in which the accused came to be before the court and that he, having spoken to him, was aware of the accused's great remorse and the effect which his having been charged with the offences had had on him and his family. Mr Grant said that he regarded the offending as a mistake by the accused, which he felt would not be repeated and that he would not be giving evidence on behalf of the accused had he felt that there was any risk of reoffending.

9. In addition, character evidence was given by Mr Rohed Ginna, a bank manager who had known the accused for around 12 to 13 years, having originally coached him in a school soccer team. The accused had approached Mr Ginna after being charged to seek guidance and assistance in dealing with the consequences of his behaviour.

10. Mr Ginna considered that the accused was very regretful about his behaviour. The accused had told him it had been a mistake and he was looking to get on with his life away from his situation. Mr Ginna observed that in the few months before the hearing, the accused had grown up a lot and had demonstrated a different side to his character. Mr Ginna said that the accused had given up his big partying behaviour in which he had been indulging, where the drug taking had occurred, and had knuckled down to get on with his life, in effect having grown up and matured as a result of the reality check which his arrest and charge had created for him.

11. Mr Grant told the probation officer that the accused was responsible for overseeing one of his rendering crews and that that was a testament to both his skills as a renderer and his leadership qualities. The accused, at that time, had a before tax income of about $1,250 per week providing about $350 a week to his mother and spending about $300 per week on his work vehicle, telephone and other expenses including cigarettes. The accused gave a history of first smoking cannabis in 2002, consuming it in social settings on a weekly basis up until early 2005 when he said he ceased to enjoy it and believed he was gaining weight as a result of it.

12. He said that he had used amphetamines up to three times about two years before speaking to the Probation and Parole Officer. In 2005 he said that he had been introduced to cocaine at a party and that because of its expense, his initial use was infrequent. But, as he came to earn more money, the accused said that he used the substance more frequently and that by the end of 2006 he was using it every weekend. At that time he said that he was spending more time with other people also using cocaine. He said that he had enjoyed the feeling of the drug, the time with his other fellow criminals and the context in which the use occurred. He suggested that on "an average weekend" he could spend up to $500 on the drug and $700 on, what he described as, "a big weekend".

13. Since his arrest in 2007, the accused told the probation officer that he had not used cocaine. The shock of what had occurred and fear it had engendered contributed to his transformation. The accused said that as a result of seeing the impact on his mother and sister the day after his arrest, confirmed to him that cocaine use had the potential to destroy him and his family and he did not want to do that. He said that he no longer spent time with the people who used the substance and stayed right away from that scene. The accused has no previous criminal history.

14. He said that the cocaine which was found at the time of his arrest was for the purpose of a weekend trip with his friends and that he had used the substance in the past just to have a good time. He understood the charge to be serious, acknowledged his own guilt, but said that it was totally out of his character. He also acknowledged to the parole officer that he had to face the consequences in order to account for his own actions and that this had enabled him to go forward with his own life and not to proceed down a wrong path. He had been ashamed in front of his family for what he had done and that facing up to the consequences of his wrongdoing had not been easy. The accused's mother had confirmed to the parole officer his change in lifestyle and his frequent expressions of contrition to his family since his arrest.

15. The parole officer observed that the accused had become captive to cocaine and immersed himself in a context where its use was promoted, assuming what appeared to be an amoral lifestyle. However, by the time of the first pre-sentence report, he had demonstrated to the probation and parole officer, and I accept, a degree of introspection and self-examination, including an abstinence from cocaine, a re-focus on his family, work and appropriate self-care.

16. The parole officer reported that it was encouraging that the accused had used the circumstances of his arrest and charge as a catalyst to change his lifestyle. That indicated a reduction of the risk of further offending and that his remorse, as articulated and demonstrated over that period, was apparently genuine, and, I accept that it was.

17. I included in the deferred sentence orders that the accused accept the supervision of the Executive Director of ACT Corrective Services, undertake urinalysis testing as directed and counselling and treatment programs. In the updated pre-sentence report prepared on 7 September 2009 by the same Probation and Parole Officer as had prepared the earlier report, ACT Corrective Services acknowledged that the accused had complied with the conditions of the order I imposed. It reported that the accused had undertaken three urinalysis tests at different times in the last year. These confirmed that no illicit substances had been detected and gave no indication of any cocaine use.

18. In March this year, the accused presented information about the prevention of relapse into drug use, particularly in relation to his own situation, to his parole officer, including a relapse prevention plan, which included the shame about the offence, his fear of imprisonment and his concern for family, work and business associates as being a basis of preventing a relapse into his previous bad habit. He also had attended an education session with the counselling and treatment service provided by the ACT Alcohol and Drug Program.

19. In summary, the parole officer concluded that the accused had taken advantage of the opportunity provided to him through the imposition of the deferred sentence order and that he presented as a man motivated to achieve and succeed. It noted that the accused had demonstrated commitment to a lifestyle that now did not permit the use of illicit substances and he sought to avoid negative social influences. It concluded that the experience had been salutary in changing the accused's life. He was assessed as having a low risk of re-offending and that there was little benefit likely to be derived from him being supervised by ACT Corrective Services. I accept that evidence.

20. The accused still has ambitions to pursue a career with the Australian Customs Service, but has also commenced his own business and registered a business name in the rendering trade. The accused's admitted behaviour, antecedent to the offence for which he was charged, showed that his arrest was clearly not an occasion of a one-off offence. He regularly had indulged in the use of cocaine over a considerable period of time.

21. The destruction which drugs of this character can wreak on a person is enormous. But it does not stop simply at the person who is the user, it ripples out into the person's family, friends and the community. Not only can it have the potential to destroy the user's own life, drugs as powerful and evil as cocaine, destroy the lives of the user's family who love and care for those users as they see their loved one destroyed by the substance.

22. The accused was found in possession of a very large quantity of the drug, three times the minimum amount for a trafficable quantity, so the offence is one of considerable seriousness. I have had regard to the fact that the accused was a young man on the brink of commencing an independent life and at an age when it is easy not to see the full consequences of one's own behaviour, that others would immediately see as criminal as well as stupid or destructive. I have also had regard to the fact that the accused mixed with and associated with friends who participated in the same behaviour and therefore contributed to his inability to see as clearly, as he must in any event have realised to some degree, the stupidity and criminality of what he was doing.

23. The accused has accepted responsibility for his criminal behaviour. He has expressed remorse and contrition for it and has commendably reformed his life to get away from what he was doing that could have led to its destruction and caused pain to his family who believed in him and loved him. I have considered the impact of the plea of guilty as section 37 of the Crimes Sentencing Act 2005 (ACT) requires me to do, although for the reasons I have given in R v Phay [2009] ACTSC 130, the exercise of segregating a different sentence is artificial. Had the accused not pleaded guilty, I would have sentenced him to imprisonment for one year in the event that he had been convicted. However, for the reasons that I gave in R v Phay [2009] ACTSC 130, it is impossible to state what would have been the effect of a full trial and the evidence that would have been presented and put forward at that time in respect of the accused's character.

24. The instinctive synthesis that I must perform in sentencing the accused has had regard not only to his plea of guilty, but to his own transformation from a foolish and stupid young man who thought he was invincible and unaccountable to society's norms and obligations, to one who has accepted responsibility for living in our society. He now seeks, if he can, to contribute to the community in a positive way, enforcing the law against persons such as those with whom he mixed and acted, as he had acted, in the drug scene.

25. This has caused me to reflect on the consequences of recording a conviction as the Crown has urged, having regard to the significant criminality involved in the possession of such a large quantity of cocaine, and the other sentencing options that would be available on a plea of guilty, falling short of full-time imprisonment that would not be open were I to proceed under section 17 of the Crimes (Sentencing) Act 2005 (ACT).

26. Where a person has acted out of youthful stupidity, or sometimes even adult stupidity, the court has to balance the interests of the community in imposing a sentence that reflects the need to punish, to deter others from similar behaviour and to express the court's own view as to the gravity and seriousness of the offending behaviour against the impact which any sentence may have on the rest of the person's life. Many people who appear before criminal courts do so for a once-in-a-lifetime experience based on a moment of foolishness. The accused is not quite in that category because he indulged in a lifestyle that spanned a considerable period of substantial use of cocaine and in substantial amounts. The accused had not apparently engaged in associated illicit activities, such as stealing or the like in order to support his habit.

27. Nonetheless, I am satisfied that the accused's rehabilitation, the encouragement this may offer to others who may also be caught in similar circumstances, his ability to reform his life and to elicit from responsible persons in the community the expressions of support his character witnesses provided, all suggest that he has the potential to be a useful contributor to the community's life.

28. It may well be that despite the sentence I am to impose, he will find that his conduct is taken into account by the Australian Customs Service or other law enforcement bodies with whom he aspires to be employed, to deny him an opportunity to realise his ambition. But I think that the imposition of a conviction would be a penalty likely to guarantee unemployability to a person who has, on the evidence before me, transformed himself into a rehabilitated person. I am entitled to have regard to the availability of my discretion to be merciful in the imposition of a sentence, and I propose to do so in this case for the reasons I have given.

29. It seems to me that a conviction with a good behaviour order as suggested by the Crown, would wreak a penalty on the accused for what I consider to be very serious offending, but offending that I think was a result of his immaturity and stupidity rather than hardened criminality. Such a penalty would be out of all proportion with what the accused may be able to achieve in the rest of his life if he were not blighted with a conviction at this time.

31. I find you guilty of the offence to which you have pleaded, namely, that on 12 August 2007 at Canberra, you possessed a drug of dependence, namely cocaine. I make a non-conviction order and order that you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years ending on 9 September 2011.

I certify that the preceding thirty (30) 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