Radisich v Regina

Court of Criminal Appeal (NSW)|2006-03-03|Before: McClellan CJ, Rothman J, Smart AJ, Clellan CJ

The applicant complains that the judge was under a misapprehension as to the relative quantity of the drug under Count 5, failed adequately to assess the applicant's contrition and imposed a manifestly excessive sentence.

On 10 December 2004 a controlled operation was authorised. About 5.00pm on 9 February 2005 a police undercover operative telephoned the offender's de facto partner Jennifer Fielding and negotiated a purchase of $50 worth of methylamphetamine (speed). As arranged they met at a service station at Sutherland about 6.30pm. She was a passenger in a car of which the offender was the driver. The police operative handed Ms Fielding $50 in cash in exchange for two small resealable plastic bags containing methylamphetamine.

About 7.00pm on 11 February 2005 an undercover operative again telephoned Ms Fielding and arranged to purchase $100 worth of methylamphetamine. Ultimately, Ms Fielding accompanied by the offender, met the police operative at the same service station. The operative handed $100 to Ms Fielding in exchange for five small resealable plastic bags containing methylamphetamine. The offender and Ms Fielding walked to a car with the offender driving. The purity of the drug was 28 per cent.

About 7.32pm on 23 February 2005 a police operative telephoned Ms Fielding and arranged to purchase $200 worth of methylamphetamine. The officer was asked to telephone again in half an hour. He did so and they agreed to meet at the same service station. About 10.28pm the officer telephoned again and Ms Fielding told him that she was having trouble sourcing the gear and that he would only be able to purchase a smaller amount, as other supplies were required to be made. In a further conversation after 11.00pm Ms Fielding told the officer that she was at the time at the Royal Hotel, Sutherland, doing another deal. At 11.27pm the police operatives went to the same service station. The offender was driving the vehicle in which he and Ms Fielding were travelling. An operative handed Ms Fielding, who was in the front passenger seat, $100 cash in exchange for a small resealable plastic bag containing methylamphetamine, with a purity of 5.5 per cent.

Coming to the fifth count, at 7am on 24 March 2005 police went to premises at Engadine occupied by the offender and Ms Fielding. They found a small sequined purse in which there was a resealable bag containing 1.17 grams and three small resealable plastic bags containing 0.13 grams, the contents of all the bags being methylamphetamine. The sequined purse was alleged to have been found in the handbag of Ms Fielding. In the bedroom of the offender and Ms Fielding there were numerous resealable plastic bags containing powder residue, a box of a hundred ultra fine syringes and used and unused syringes in a make-up case, a tourniquet and a silver knife.

The Analyst's Certificate reveals that there was a resealable plastic bag containing powder which was identified as heroin (0.01 grams). That bag appears to have been found in the Engadine premises. Ms Fielding and the offender were taking heroin.

The offender attributed his and Ms Fielding's offending to ongoing serious drug abuse, namely, the injection of heroin and amphetamine as the factor which led to their offences. That abuse had existed over a period of about two years prior to his arrest on 24 March 2005. Their mutual habit cost them about $500 per day and their involvement in supplying the drugs in question had assisted them to meet the cost.

The offender was born on 4 May 1968. His past criminal history includes some minor matters of no present consequence. The offender's parents separated when he was five years old. His mother remarried and moved from New Zealand to New South Wales. He stayed with his father and came to New South Wales when he was aged 16. He formed a relationship with a lady, but that broke down after nine years. That occasioned him much distress. There were two children from that relationship. The offender subsequently formed a relationship with Ms Fielding.

The offender has the support of his mother and his brother and has re-established his relationship with his children.

The applicant used marihuana and speed from the age of twelve to seventeen. He said that when he came to Australia he stopped using drugs. He has had various types of employment, finally becoming involved in glass contracting. For over three months prior to his arrest he had been unemployed because of his escalating drug difficulties. Prior to that he had, for much of the time, been in regular employment.

After his first relationship ended he lapsed back into taking drugs. He had had a very good relationship with his children and this continued for a period after the separation from his first partner. However, as his drug use increased he ceased seeing them every weekend and twice during the week, and only saw them about every six months.

The applicant was on buprenorphine when he entered custody on 24 March 2005. Since then he has ceased taking buprenorphine and any drugs. He has been going to drug and alcohol sessions. He has also made rehabilitation enquiries and said that he was also interested in a residential programme. Admission required him to be drug-free.

The applicant said that since he had been in gaol he had re-assessed his life and his values. He said, "I realise what is important to me, and that's my kids and my wellbeing." He said that physically he had a better mind set and felt one hundred per cent. His brother, Mark, had brought his children to see him in custody. The applicant said that he wanted to undergo rehabilitation so as to ensure that he does not lapse back into taking drugs.

The applicant's mother, Mrs Noeline Lorigan , who has visited him regularly in gaol said that she noticed that her son started to change after he had been in gaol for three months. She had seen his descent into drug abuse and was aware that he had not seen his children.

At the hearing before the judge there was evidence that the applicant's brother, Mark, was prepared to offer the applicant accommodation and a job in his glazing business.

The judge accepted that the applicant was genuine when he said that he felt ashamed and sorry for what he had done.

The judge found, from the evidence adduced by the Crown, that the offender played a lesser role than Ms Fielding, who was the person the undercover operatives contacted and with whom they made arrangements for the supplies. She handed over the drugs and received the money. The judge held, "the offender would seem to be more in the order of a chauffeur for Ms Fielding. That remark applies with force to Counts 1 to 4, but not so much to Count 5. However, Ms Fielding does seem to have the dominant member of the relationship when it came to drug matters.

The judge remarked that his role was a serious matter because: "… he took advantage of the activities of Ms Fielding to feed his drug habit through the purchase of drugs with the money that was handed to her by the undercover operatives." The judge also remarked that the applicant had not sought to blame anyone else for his succumbing to drug abuse.

The judge noted that none of the drugs had been disseminated into the community and that the amounts provided were "relatively small and in total it would seem amounted to something in the order of 1.7 grams, the last matter on 24 March being a deemed supply"

The reference to 1.7 grams is a reference to the total of the amounts covered by Counts 1 to 4.

The judge had regard to s 21A of the Crimes (Sentencing Procedure) Act. As to the aggravating features, she found that the only one of relevance was that there was a degree of planning in the commission of the offences. As to the mitigating features, she considered that there were prospects of rehabilitation, that the expressions of remorse were genuine and that the plea of guilty was at the earliest opportunity. She held that he was entitled to the maximum discount in the sentence to be imposed of 25 per cent. I agree with the judge's approach to the aggravating and mitigating features.

The judge accepted that as the offences were committed over such a short period of time concurrent sentences were appropriate. The judge found that there were special circumstances as this was the applicant's first time in custody and the Probation and Parole report recommended that extended supervision would be required. I agree that there were special circumstances requiring a longer period on parole. The judge directed that on his release to parole the applicant was to obey all reasonable directions of the Probation and Parole Service, particularly with regard to undertaking drug counselling and to entering a residential drug rehabilitation centre.

Appeal Ground 1 reads: "The … judge was under a misapprehension as to the relative quantity of the drug in relation to count 5"
The applicant pointed out that the total quantity of the drug found in the Engadine premises was 1.3 grams and that this was below the trafficable quantity of 3 grams.

Section 29 of the Drug Misuse and Trafficking Act relevantly provides: "A person who has in his … possession an amount of a prohibited drug which is not less than the trafficable quantity shall … be deemed to have the prohibited drug in his … possession for supply unless …"
This is an evidentiary provision which is useful to the Crown where the evidence available does not disclose the purpose for which the accused had the drug in his possession. The section facilitates proof of the purpose of possession.

30.The offence provision is s 25, which relevantly provides: "(1) A person who … knowingly takes part in the supply of a prohibited drug is guilty of an offence."

31.By s 3 supply includes "keeping or having in possession for supply."

When judges refer to "deemed supply" they usually refer to a case where use is being made of s 29 of the Act. That is a matter of practice and it is a form of shorthand but it is not invariable.

In the present case the applicant pleaded guilty to the offence of supply and facts existed from which it was able to be inferred beyond reasonable doubt that the offenders were keeping or having methylamphetamine in their possession for the purpose of supply or at least that Ms Fielding was and they were joint offenders. Harriman v The Queen (1989) 167 CLR 590 would have rendered admissible the earlier incidents of drug supply.

The judge specified the quantity of methylamphetamine the subject of Count 5. I would not conclude that the judge thought that the fifth count dealt with 3 grams or more of methylamphetamine or that she thought that she was dealing with a trafficable quantity. The commission of the offence was clear and the judge's description of the offence as a "deemed supply" was inconsequential. She did not misunderstand the situation with which she was dealing.

Appeal Ground 2 reads: "The … judge failed to adequately assess the contrition of the applicant."
The applicant contends that the judge's description of Count 5 as "being a deemed supply" contributed to her erroneous assessment of the value of the applicant's contrition.

The applicant complained that no consideration was given to him entering a plea of guilty to Count 5 in circumstances where the prosecution would have difficulty proving the offence beyond reasonable doubt. This point was not taken in the District Court. For the reasons earlier advanced the prosecution would not have had difficulty in proving Count 5. Nor did the entry of the plea to Count 5 warrant a further discount in the applicant's sentence.

The applicant further complained that the judge made no specific reference to the utilitarian value of the plea and that the discount appeared to be a representation of the combined discount for contrition and the utilitarian value of the plea of guilty.

The discount which the judge gave was adequate in the circumstances and is not open to a successful attack on appeal. The evidence of the police officers lay within a short compass and the trial would not have been a long one. The judge was fully aware of the applicant's contrition.

In his oral submissions counsel contended that there had been no separate analysis of contrition in respect of the fifth count. This was not necessary. The applicant was contrite and the judge accepted this.

Appeal Ground 3 reads: "The sentence for count 5 is manifestly excessive."
The applicant contended that the judge's misapprehension as to the correct "range" of the drug and the failure to fully appreciate the significance of the applicant's contrition were also contributing factors in a sentence that is manifestly excessive for the small quantity of drugs involved. There is no substance in either of these alleged contributing factors.

The applicant also relied on the judge's failure to refer to the fact that all five counts could have been disposed of in the Local Court where the maximum penalty for the offence is 2 years imprisonment.

As the Crown points out it was not submitted by the applicant before the judge that the offences could have been dealt with in the Local Court and that this should impact upon the sentences which she imposed. That, of course, is not fatal.

The judge referred to the relatively small quantities of methylamphetamine involved. Three counts involved substantially less than one gram and two counts just a little over one gram. The judge reviewed all the circumstances and imposed the sentences which she thought were appropriate. I would not attach importance in the circumstances of the present case to her not referring to the fact that the proceedings could have been disposed of in the Local Court, when the Crown had obviously elected to have them dealt with in the District Court. That is an understandable election, given the number of offences. See also the decision of R v Palmer [2005] NSWCCA 349.

The applicant submitted that the judge must have started with a total sentence of 3 years 4 months for the charge of being knowingly concerned in the supply of 1.3 grams of methylamphetamine, taking into account the four offences earlier mentioned. The judge was required to first set the non-parole period but the total sentence which she had in mind, absent the 25 per cent discount, was probably 3 years 4 months and that is excessive even allowing for the drug trafficking in the small quantities that had taken place, including that this was the fifth offence. As the offences continued to occur the applicant's criminality increased. The five offences occurred within a short period as the judge acknowledged.

I do not overlook that the judge found that the applicant needed an extended period on parole. The judge has empowered the Probation and Parole Service to require the applicant to enter a residential drug rehabilitation centre. Most of those centres by their rules effectively confine the inhabitants to the centre and thus restrict the inhabitant's freedom of movement. It can amount to a further term of quasi or de facto custody. Further, as a breach of the parole direction can lead to the offender being returned to gaol to serve the balance of his sentence.

As the sentence imposed on Count 5 is manifestly excessive it is necessary to proceed to re-sentence. The applicant is to be released to parole on 23/24 March 2006 in any event.

There is evidence in the affidavits filed that the applicant will be able to live with his brother Mark and his family and that Mark will employ the applicant in his glazing business. That was the position before the judge. The family support of the applicant is solid. Again, that was the position before the judge. I adopt the judge's findings as to the factors mentioned in s 21A of the Crimes (Sentencing Procedure) Act 1999. Special circumstances exist and I adopt the judge's approach to these.

I propose the following orders and directions: 1. Leave to appeal against sentence on Count 5 granted. 2. Appeal against sentence on Count 5 allowed; sentence quashed 3. In lieu of the sentence imposed on Count 5, and taking into account the offences on Form 1, the applicant is sentenced to imprisonment as follows: (a) Set a non-parole period commencing on 24 March 2005 and expiring on 3 March 2006; and (b) to a total term of 2 years to date from 24 March 2005 and expire on 23 March 2007. 4. Direct that on the applicant's release to parole he is to obey all reasonable directions of the Probation and Parole Service, particularly with regard to undertaking drug counselling and to entering a residential drug rehabilitation Centre. The Service will have to assess the latter in the light of the applicant's current condition and his need of residential drug rehabilitation as against living with members of his family and working for his brother, Mark Radisich .

McCLELLAN, CJ at CL: The orders of the Court are therefore as Smart AJ has indicated.

10/03/2006 - Incorrect file number - on coversheet only - mary o'farrell - Paragraph(s) coversheet only 14/03/2006 - Incorrect CCA file number given on coversheet and file - Paragraph(s) N/A

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CITATION: Radisich v Regina [2006] NSWCCA 52 This decision has been amended. Please see the end of the judgment for a list of the amendments.

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