R v Joan Tomici Scc [1988] ACTSC 29 (31 May 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. JOAN TOMICI
S.C.C. No. 19 of 1988
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Law - Sentencing - Possession of heroin for purpose of supply - No previous convictions for dealing - Accused acted as entrepreneur in concert with two associates - Plea of guilty entered.

Poisons and Narcotic Drugs Ordinance 1978 - s.4.

Jurkovic v. R. (1981) 6 A Crim R 215

HEARING

CANBERRA
31:5:1988

DECISION

Joan Tomici pleaded guilty to a charge that between the 15th and 21st days of December 1987 at Canberra he had in his possession the controlled substance, heroin, for the purpose of supplying it to another person or to other persons. The offence charged is a contravention of s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 and by s.4(6) of that Ordinance the accused is punishable on conviction by imprisonment for a term not exceeding 25 years or a fine not exceeding $100,000 or both such imprisonment and fine.

2. I am satisfied beyond reasonable doubt that at about 3.40 am on the morning of 20 December 1987 the accused drove a motor vehicle which bore New South Wales registration number plates and in which a young woman was a passenger to the Forest Lodge Motor Inn. They walked to the door leading to Room 28. As they reached the door they were intercepted by members of the Australian Federal Police who subsequently identified themselves. Thereafter Detective Senior Constable Tompsett, with Detective Baker, searched the vehicle. Another police officer pointed to a metal compartment under the bonnet of the vehicle in which Senior Constable Tompsett found a white coloured cloth with proved to be an old "sloppy joe" jumper from which, when unfolded, a clear plastic bag containing a quantity of white powder fell and landed on the ground beside the motor vehicle. Shortly afterwards Senior Constable Tompsett pointed out the plastic bag to the accused who denied knowing anything about it. He was cautioned and questioned further. He said that he had been drinking that night at a tavern near the centre of the city of Canberra. He had been, he said, in Canberra for about three days, having arrived with three other persons. They had stayed at the motel, he, with another man, occupying Room 26. He had driven the car to Canberra.

3. He was told that during the search of Room 26 earlier in the evening Detectives had located a set of weighing scales and some silver foil. He said that he did not see any scales or foil when he left. It was put to him that a large number of telephone calls had been made from Room 26. He said that he could not understand how there could have been so many since he had rung only three times. He said he had rung two friends in Sydney and that his room mate had rung his mother a couple of times in Sydney. He denied that he used drugs and said that he had never used any illegal drugs. He said that he had known the woman with whom he had arrived for a couple of months but he had not seen her to be involved with illegal drugs. He denied that the fourth member of the party had been to Room 26 and said that he had not gone to his room either but the woman had been twice to the room. He said that he intended to return to Sydney on the following morning. He said that since he had arrived in Canberra he had just been walking the streets and going into the city.

4. Constable Tompsett then said that he had received information that the four had been involved in selling heroin since they had been at the motel. The accused said he did not touch it or sell it and he had not seen any except what he had been shown outside on the ground. He persisted in his denials and was told that he was under arrest.

5. Some time after 5.45 pm on 20 December 1987 Senior Constable Tompsett spoke again to the accused who said to him, "I want to tell you truth". Asked what he meant, he replied, "Heroin is mine, I take blame". Subsequently, during the course of questioning, he said that the heroin which the police officers had found the night before was his. He knew it was heroin because the man who had sold it to him had said it was. He had paid $3,000 for it and had bought it on the previous Tuesday, which must have been 15 December 1987, from a man whom he knew only by his first name.

6. Asked what he intended to do with the heroin he replied, "Sell it. Give it to (the woman)." He was going to give her some because she was using it. He said he put the heroin in the car and that none of the other three saw it. He had put the heroin into the car on the previous Wednesday. He was then asked, "When were you going to sell the heroin?" He replied, "I was going back to Sydney this morning and I did not want to sell it any more." Asked what he was going to do with the heroin he replied, "Give it back to that guy. Don't want it any more." Asked about his having told Detective Tompsett that he hadn't gone to Sydney, he said that he was "shocked, spirit". By that he clearly meant "dispirited". He said he had left for Sydney at about a quarter to nine the night before and got there at 12 o'clock or shortly after. He was shown the weighing scales referred to earlier and agreed that he had seen them before in the bathroom in his motel room but that he did not own them. His roommate had bought them to use them to measure heroin on the table in the motel. He had been with his roommate when he measured the heroin. Asked how much heroin he brought from Canberra on the previous Wednesday, he said, "One thousand and that one (indicating the plastic bag). Altogether four thousand". He said that he gave the $1,000 package to the man and the woman who were staying in Room 28. They gave him $2,000. He said that he had spent the money paying bills, going to a restaurant, putting petrol in the car, and in giving his roommate $850.

7. The heroin admixture in the plastic bag weighed 49.901 grams, was of a strength of about 14% and contained 6.986 grams of pure heroin. The traffickable quantity, possession of which is deemed to be possession for the purposes of supply, is 2 grams.

8. There is no evidence that the accused engaged in the supply of heroin to any but the three persons who were with him but it seems clear that his role was that of the entrepreneur. That description was put to his counsel who accepted it.

9. The accused denied that he had been in Canberra earlier than 15 December 1987 although Senior Constable Tompsett gave some evidence to indicate that he may well have been in Canberra at earlier dates. I cannot be satisfied beyond reasonable doubt that this was so.

10. Detective Senior Constable Tompsett described the amount of heroin seized as the biggest seizure which he had seen in his approximately two years in the drug squad. Certainly it is a substantial amount by Canberra standards but it does not compare with the largest amount ever seized in Canberra, some 130 grams of pure heroin.

11. The accused did not provide any details to the investigating police concerning his antecedents. Of course, he was not bound to. However, he did give evidence.

12. He was born in Romania on 4 December 1950. He married in August 1971. He has one surviving son. His wife and son are still in Romania. In 1978, with eight others, he escaped to Yugoslavia, planning to go to Germany, but was caught by Yugoslav police and gaoled. He was taken to the Italian border and was subsequently picked up by Italian police. On 21 December 1980 he arrived in Sydney where he obtained work. He seems to have continued in employment at various places in New South Wales until he went to Melbourne where he lived for some four years. He was obviously a hard worker, holding down two jobs. He returned to Sydney in 1987 and subsequently went back to Melbourne. He planned to return to Romania temporarily and he bought a ticket in November 1987 so that he might return to Romania in January. He went back to Sydney where, at Kings Cross, he met the other three who were staying at the motel. He said that they insisted that he should engage in the enterprise with them. He said he did not want to do it but was "corrupted". He also gave evidence that he did not pay for the heroin which he had received but had it on credit. On its sale he was to give $3,000 to the vendor and keep the profit.

13. He said that he felt very bad about the whole business. It would have a bad effect, he thought, on his plans for his wife and son. He had applied for their entry into Australia and also for the entry of one of his brothers. He understood that it was possible that because of what had happened his wife and son might not be allowed to enter Australia. He had been told this by the Romanian Consul.

14. He had hoped to make $5,000 which he planned to send home to his wife and son.

15. He gave further evidence concerning the relationship with the three others and confirmed that he had paid for the room, meals and telephone calls and that he had borrowed the car.

16. He said that he went to Sydney on 19 December because he did not want to come back. He had taken the woman with him because she wanted to go. I found this part of his evidence unsatisfactory.

17. He was mistakenly released as though on bail from the Belconnen Remand Centre but after a few days unauthorised freedom eventually he returned after taking advice.

18. In all he spent approximately three months in custody while awaiting the disposition of his case. He was subsequently granted bail by Gallop J and seems to have obeyed the terms and conditions of bail.

19. The landlady of the boarding house where he has lodged in Melbourne gave evidence which confirmed his evidence that he was a hard worker.

20. Mr Purnell of counsel for the accused submitted that I should take into account that the accused was a hard worker, holding down more than one job, that he had escaped from Romania, that he had been in no real trouble and that he had obeyed the conditions of his bail. The accused was an Australian Citizen who had been "corrupted" by others. He submitted that I should take into account his conduct while in custody and accept him as a man of worth who sensibly did not take advantage of his accidental release from custody while on remand. He submitted that I should take into account the accused's plea of guilty. He submitted that he had already paid a heavy toll for what he had done because his plans to bring his family out from Romania were jeopardised and he might not be reunited with his family in Australia at all. He submitted that I should take into account his expression of contrition.

21. I take into account all that Mr Purnell said.

22. Mention was made of R. v. Jurkovic (1981) 6 ACrim R 215. At p 220, Fox J, giving the judgment of the Federal Court of Australia, said:-
". . . the extent of a sentence cannot be

worked out a priori; there must be empirical
standards of comparison. I have collected
information concerning sentences imposed in
the Australian Capital Territory and in new
South Wales and Victoria for heroin offences
the same as or comparable with those for
which the present appellant has been
convicted. I should interpolate the
observation that so far as I can ascertain
there is no comprehensive set of meaningful
statistics available. I have also looked at
recent English cases (where, however, the
maximum is fourteen years) and read what
Thomas, Principles of Sentencing (2nd
edition, 1979) has to say at pp 188, 189.
Only a very general guidance can be obtained
in this way, and caution has to be used in
applying such information as is available.
Two factors seem uniformly to be regarded as
important. One is the amount of the drug, in
terms of pure heroin. The other is whether,
supply being a purpose, the supply was to be
for straight out commercial profit (the more
serious case) or for financing the prisoner's
own addiction; in the latter case part would
doubtless be for his own use. In the
last-mentioned type of case, five years'
imprisonment is in general at or towards the
top of the range, if the amount involved is
small."

23. This case is, I think, one where the accused's aim was straight out commercial profit. There is no suggestion that he has any addiction or even that he uses heroin. His past record shows a conviction for driving with the prescribed concentration of alcohol (.11), a conviction on the same day for being an unlicensed driver and some five months later a conviction for possessing Indian hemp. He has had no conviction since the last one which was recorded on 17 August 1982 at Fairfield Petty Sessions, New South Wales.

24. While there are aspects of the accused's case which give rise to suspicion that he was engaged more heavily in the heroin trade than appears, I cannot be satisfied beyond reasonable doubt of more than I have set out above. In these circumstances I have had regard to comparable sentences which have been imposed and which are usefully collected in Carter's Australian Sentencing Digest. I take note especially of the plea of guilty and of the other submissions put by the accused's counsel. In all the circumstances I think the proper sentence to impose, one that will sufficiently meet the purposes of punishment, is one of five years and three months imprisonment.

25. Joan Tomici, I record a conviction on your plea of guilty and on that conviction sentence you to imprisonment for five years and three months, the sentence to date from 1 March 1988. I fix a non-parole period of two years and nine months to date from today.