R v Giurgis [2001] NSWCCA 129

New South Wales Court of Criminal Appeal

CITATION : R v Giurgis [2001] NSWCCA 129 FILE NUMBER(S) : CCA 60788/00 HEARING DATE(S) : 11 April 2001 JUDGMENT DATE : 11 April 2001

PARTIES : Regina Mikel Guirgis JUDGMENT OF : at 1; Smart AJ at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0594 LOWER COURT JUDICIAL Dalgleish ADCJ OFFICER :

COUNSEL : M Grogan (C) J Crespo (A) SOLICITORS : S E O'Connor J Rigg CATCHWORDS : CRIMINAL LAW - appeal - appeal against sentence - supply of prohibited drug - failure to take into account subjective circumstances of the applicant CASES CITED: Crimes (Sentencing Procedure) Act 1999 s 44(2) Drugs Misuse and Trafficking Act 1985 s 25(1) DECISION : (1) Appeal allowed.; (2) Non-parole period reduced to eight months.

-IN THE COURT OF CRIMINAL APPEAL

No. 60788 of 2000

WOOD CJ at CL Smart AJ 11 APRIL 2001 Regina v Mikel GUIRGIS JUDGMENT

The applicant pleaded guilty in the District Court to one count of supplying the prohibited drug heroin, an offence for which the maximum penalty prescribed under s 25(1) Drug Misuse and Trafficking Act 1985 is imprisonment for fifteen years or a fine of $220, 000. The applicant was sentenced to sixteen months imprisonment with a non-parole period of twelve months.

The applicant appeals against the sentence imposed on the grounds that (1) the trial judge was in error in finding that no "special circumstances" existed.

Held: (Appeal allowed):

Ground 1: The trial judge failed to take into account "special circumstances" of the applicant There was a measure of misunderstanding on the part of the sentencing judge in relation to special circumstances. The trial judge's reasoning was not directed to the existence of subjective or other reasons that might have justified an adjustment of the proportion between the head sentence and the non-parole period. The relevant subjective circumstances show that the applicant was of a relatively young age and had made positive steps towards removing himself from the drug scene. It was in the interest of the applicant and the community that he be encouraged on the path of rehabilitation and for that reason that he be afforded the opportunity for an extended period of post release supervision.

Moffat (1990) 20 NSWLR 144; Phelan (1999) 66 A Crim R 446 considered.

ORDERS PROPOSED

(1) Appeal allowed.

(2) Non-parole period reduced to eight months.

IN THE COURT OF CRIMINAL APPEAL

No. 60788 of 2000

WOOD CJ at CL Smart AJ 11 APRIL 2001 Regina v Mikel GUIRGIS JUDGMENT

The applicant pleaded guilty in the District Court to one count of supplying the prohibited drug heroin, an offence for which the maximum penalty prescribed under s 25(1) Drug Misuse and Trafficking Act 1985 is imprisonment for fifteen years or a fine of $220, 000. The applicant was sentenced to sixteen months imprisonment with a non-parole period of twelve months.

The applicant appeals against the sentence imposed on the grounds that (1) the trial judge was in error in finding that no "special circumstances" existed.

Held: (Appeal allowed):

Ground 1: The trial judge failed to take into account "special circumstances" of the applicant There was a measure of misunderstanding on the part of the sentencing judge in relation to special circumstances. The trial judge's reasoning was not directed to the existence of subjective or other reasons that might have justified an adjustment of the proportion between the head sentence and the non-parole period. The relevant subjective circumstances show that the applicant was of a relatively young age and had made positive steps towards removing himself from the drug scene. It was in the interest of the applicant and the community that he be encouraged on the path of rehabilitation and for that reason that he be afforded the opportunity for an extended period of post release supervision.

Moffat (1990) 20 NSWLR 144; Phelan (1999) 66 A Crim R 446 considered.

ORDERS PROPOSED

(1) Appeal allowed.

(2) Non-parole period reduced to eight months.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60788/00 WOOD CJ at CL SMART AJ

WEDNESDAY, 11 APRIL 2001

REGINA v MIKEL GUIRGIS

JUDGMENT

1 WOOD CJ at CL: The applicant pleaded guilty in the District Court to one count of supplying the prohibited drug heroin, an offence for which the maximum penalty prescribed under S 25(1) of the Drug Misuse and Trafficking Act is imprisonment for fifteen years or a fine of $220,000. He was sentenced to sixteen months imprisonment with a non-parole period of twelve months. 2 The applicant was arrested shortly after he was seen speaking to another man who had walked up to his motor vehicle at Arncliffe, in the early hours of 3 March 2000. After a short conversation, that other man walked away. When police spoke to the applicant, he was found to have in his possession $580 in cash and 33 balloons containing a total of 5.5 grams of heroin. He asserted that he had resorted to the sale of drugs to assist with his heroin habit. This was his first arrest, however, for a drug offence. He had a relatively minor record for assault occasioning actual bodily harm, and for some driving offences, which had been dealt with by community service and fines. 3 His Honour found that the balloons were in his possession for sale and that their possession by him was not just an isolated happening. So much was supported by the applicant's evidence to the effect that he had sold drugs to support his own habit. His Honour took into account the early plea as evidence of contrition and as having a utilitarian value. He declined to fix special circumstances apparently by reference to the nature of the offence. 4 The applicant accepts that the aggregate sentence was within range - as it clearly was - since this was a serious offence. He contends that his Honour, however, erred in his approach to "special circumstances" and in particular in not finding them to exist. 5 It does appear there was a measure of misunderstanding on the part of the sentencing judge so far as the exchange which occurred with Counsel in relation to "special circumstances," seems to have turned solely upon whether a supply offence could be properly dealt with by a non-custodial sentence, or by the passing of a lesser sentence than that which his Honour had in mind. It was not directed to the existence of subjective or other reasons that might have justified an adjustment of the proportion between the head sentence and the non-parole period specified by S 44(2) of the Crimes (Sentencing Procedure) Act 1999. Because of the approach taken, his Honour effectively cut off the debate with the result that he did not have the benefit of any submissions from counsel directed to this aspect of the case. 6 Since his Honour appears not to have addressed the correct question, I would grant leave to appeal and consider the matter afresh. 7 The relevant subjective circumstances, identified from the applicant's evidence, show that he: a) Was 24 years of age.

b) Had never previously been in custody, although he had a minor record for offences not involving drugs.

c) Had first consumed drugs in January 2000.

d) Had become addicted to smoking heroin, having a habit costing him in the order of $80 per day.

e) Had resorted to the sale of drugs to feed that habit.

f) Had been in employment during the preceding five years but was unemployed at the time of his arrest.

g) Had ceased to use drugs after his arrest and had disassociated himself from his previous company which was unsavoury.

h) Had been in full time employment as a painter for the three months preceding the date on which he appeared for sentence, and had plans to establish his own painting business, or otherwise had permanent employment to which he could return.

i) His parents were elderly and of ill-health who were unaware that he was facing sentence.

j) He had pleaded guilty from the outset although his conviction, it must be said, was inevitable.

k) He demonstrated contrition. 8 A presentence report confirmed that his prospects of employment were "good" and added that, if released under supervision by the Probation and Parole Service, he would be encouraged to maintain his new lifestyle. That report also noted that he would benefit from the programmes which it provided to address self esteem and stress management issues. 9 The simple issue which arises for this Court is whether the circumstances outlined were such as to justify a reduction of the non-parole period. In my view, what was important in the present case was the relatively young age of the applicant, and the fact that he had made positive steps toward removing himself from the drug scene. While this offence was serious, and justified a term of imprisonment, it was in his interest, as well as in the interest of the community, that he be encouraged to continue upon that path of rehabilitation, and for that reason, that he be afforded the opportunity for an extended period of post release supervision, in accordance with the philosophy mentioned in R v Moffatt (1990) 20 NSWLR 144 and R v Phelan (1999) 66 ACrimR 446. 10 For these reasons I would propose that the appeal be granted and that the nonparole period be reduced to one of eight months to expire on 4 August 2001. Otherwise the sentence imposed should, in my view, be confirmed. I would direct the release of the applicant at the expiration of the nonparole period. 11 SMART AJ: I agree. 12 WOOD CJ at CL: The order of the court will be as I have proposed. **********

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