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Supreme Court of the ACT |
Last Updated: 26 October 2009
R v SLAVKO POPOVSKI
[2009] ACTSC 131 (10
September 2009)
EX TEMPORE JUDGMENT
No. SCC 11 of 2008
Judge: Rares J
Supreme Court of the ACT
Date: 10 September 2009
IN THE SUPREME COURT OF THE )
) No. SCC 11 of 2008
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
SLAVKO POPOVSKI
ORDER
Judge: Rares J
Date: 10 September
2008
Place: Canberra
THE COURT ORDERS THAT:
1. The accused was indicted on two counts to be tried in this court, but, on 24
June 2008, the prosecution indicated that it would
accept, in full satisfaction
of the indictment, a plea of guilty to the second count, namely that on 12
August 2007, at Canberra
in the Australian Capital Territory, the accused
possessed a drug of dependence, namely cocaine, in contravention of section
169(1) of the Drugs of Dependence Act 1989 (ACT). The circumstances in which
that occurred were in a statement of facts which the accused has accepted as
accurate.
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.
30. Mr Popovski, stand up please?
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
Associate:
Date: 2 October 2009
Counsel for the Crown: Ms J Davidson
Solicitor for the Crown: Director of the Public Prosecution for the ACT
Counsel for the Accused: Mr R Thomas
Solicitor for the Accused: S & T Lawyers
Date of hearing: 10 September 2009
Date of judgment: 10 September 2009
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