Re John Richard Radecic v R [1990] FCA 529 (21 December 1990)

FEDERAL COURT OF AUSTRALIA

Re: JOHN RICHARD RADECIC
And: THE QUEEN
No. ACT G17 of 1990
FED No. 770
Criminal Law
51 A Crim R 209

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Spender(1), Miles(1) and Von Doussa(1) JJ.

CATCHWORDS

Criminal Law - appeals - plea of guilty to charges of supply heroin - appeal against severity of sentence between accused and offenders charged with a related conspiracy.

Criminal Law - sentence - factors to be taken into account - accused's criminal record

HEARING

CANBERRA
21:12:1990

Appearances for the appellant: Mr Radecic in person

Appearances for the respondent: Mr Lalor

Instructed by: Director of Public Prosecutions

ORDER

The appeals be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Mr John Richard Radecic appeals from sentences imposed on him by Kelly J. in the A.C.T. Supreme Court on 9 March 1990.

2. On 1 March 1990, the appellant pleaded guilty to twenty counts of supplying in the Australian Capital Territory a controlled substance, heroin, to another person. The penalty provided for each such offence is imprisonment for a period of twenty-five years or a fine of $100,000.00, or both such fine and imprisonment. Five of those charges alleged a supply on 25 February 1988, four on 26 February 1988, three on 28 February 1988, three on 29 February 1988 and five on 1 March 1988. After the pleas had been taken, Kelly J. recorded a conviction in respect of each charge, and adjourned the proceedings until matters involving three other persons, Diamond, Cox and Tebbutt, had been concluded.

3. On 9 March 1990, in respect of each of the twenty offences to which he had pleaded guilty, Mr Radecic was sentenced by Kelly J. to 4 years imprisonment, the sentences to be concurrent and to date from 4 December 1989, having regard to the period Mr Radecic had already spent in custody. Kelly J. fixed a non-parole period to terminate on 3 December 1991.

4. It is from these sentences that this appeal is brought, although only a single notice of appeal was filed. The grounds set out in the notice of appeal filed by the Legal Aid Office, A.C.T. on 30 March 1990 were:

. His Honour erred in that he placed undue
weight on the Appellant's criminal record which
did not include any prior offences for the supply
or usage of heroin.
. His Honour erred in that he categorised the
Appellant as a "medium range dealer" against the
weight of evidence which indicated that the
Appellant had been involved in the supply of
heroin to the value of $1,365.00 over a period of
5 days.
. His Honour further incorrectly categorised
the Appellant as a "medium range dealer" by having
regard to evidence given in the sentencing
proceedings of the Appellant's co-offenders, in
particular, evidence of a conspiracy to supply
heroin, when the Appellant was not found guilty of
conspiracy but of the substantive offences.
. The sentences were in all the circumstances
manifestly excessive and in particular did not
give sufficient weight to the Appellant's success
in rehabilitating himself over the period of 2
years since the offences occurred.

5. The orders sought by that notice of appeal were that the Court "set aside the sentences imposed on all counts and replace those sentences with its own sentences".

6. A handwritten supplementary notice of appeal filed on 20 April 1990 contained six numbered paragraphs, as follows:
"1. His Honour erred in not granting a

separate trial to the appellant by having regard
to evidence given in sentencing proceedings of the
appellant's co-offenders.
2. The appellant was tricked into
pleading guilty with mitigating circumstances a
week prior to the sentencing proceedings.
3. The appellant's counsel failed,
contrary to instruction to disclose any mitigating
circumstances.
4. The appellant's counsel failed,
contrary to prior instructions to a) call two
police witnesses b) tender a copy of Mr. Tebbutt's
original statement which clearly confirms my
reason for being at his residence c) tender a
report from Janet Smith from A.C.T. Drug and
Alcohol confirming my seeking help two days after
leaving Tebbutt's residence in March 1988.
5. His Honour failed to take into
account the 2 years since the offences occurred,
the indirect sentence of not being allowed to have
contact with my two younger children until this
matter is resolved.
6. His Honour did not give sufficient
weight to the appellant's not re-offending in the
time prior to the sentencing proceedings compared
with the appellant's co-offenders' numerous
offences."

7. On the hearing of the appeal Mr Radecic appeared on his own behalf. The grounds in the supplementary notice of appeal were drafted by Mr Radecic personally.

8. As suggested by the supplementary notice of appeal, the appellant was one of a number of offenders connected with residential premises in the A.C.T., who were sentenced by Kelly J. His Honour commenced his remarks on sentence by summarising Mr Radecic's part in a heroin distributing operation:

"John Richard Radecic was arrested for his
part in a heroin dealing operation conducted from
premises at 19 Batman Street, Braddon, which were
occupied principally by Michael Tebbutt and Jane
Louise Diamond, husband and wife.
Following the installation of a listening
device in the premises on 23 February 1988, it was
learnt that Tebbutt and Diamond were distributing
heroin to a large number of persons. They
themselves used heroin and while they attempted to
make a profit from their dealing, the amount of
profit depended on how much heroin they used
themselves.
On 24 February 1988 Tebbutt admitted
himself to the Detoxification Unit at Duntroon in
an attempt to reduce his heroin usage. When that
happened, Radecic moved into the house and between
24 February 1988 and 2 March 1988 became actively
involved in the supply of heroin to a large number
of customers. He took orders, cut the deals and
delivered to customers. He used heroin himself.
The indictment charges him with 20 counts of
supplying heroin and particulars of these are
given in a Statement of Facts which was tendered
in evidence and to which no challenge was made.
Indeed, the taped recordings of the conversations
which took place in the premises while the
listening device was installed, and to which I had
the opportunity to listen in the course of two
earlier trials, amply support the charges."

9. To the suggestion made in the third ground of the original notice of appeal and repeated in the first ground of the supplementary notice of appeal that the sentencing judge impermissibly had regard to evidence in other proceedings against other offenders, the transcripts of the tape recorded conversations which demonstrate the appellant's role in the substantive offences with which he was charged was in evidence before Kelly J. on the sentencing of the appellant. The evidence of the tape recorded transactions was centrally relevant to the sentencing process, and there was no challenge to the accuracy or reliability of what was in evidence as the transcripts of the tape recorded conversations. It is not a matter of valid complaint or criticism that the tapes themselves had been heard by the sentencing judge in the course of other trials.

10. Evidence dealing with the conduct of others in the heroin distribution operation was relevant to establish the appellant's place in that operation. Such evidence was properly before Kelly J. in the sentencing of Mr Radecic; there is no basis for believing that evidence from other trials was relied on by the sentencing judge. The appellant himself gave oral evidence before Kelly J. In the course of that evidence it was put to him:

" ...you moved into the house in Braddon
because you knew that Mr Tebbutt and Miss Diamond
were supplying drugs to quite a number of people;
that is heroin, and you wanted to be there to
protect Miss Diamond as Mr Tebbutt was not going
to be in a position to do so, is that not right?"

to which he replied:

"Yes, that is right."

He said that Miss Diamond was ill, and lying down most of the time, but agreed that "she was involved in actually consummating heroin transactions in the house" just as much as he was, and was involved in going out and getting heroin on the occasions that Mr Radecic was involved in supplying on to other people.

11. A major part of his complaint seems to be that having regard to his relative involvement in the heroin distribution operation, his sentences were disproportionately heavy compared to other persons whose involvement was greater.

12. While the appellant claims that he was "tricked into pleading guilty with mitigating circumstances a week prior to the sentencing proceedings", the evidence does not support that broad allegation nor are particulars advanced in support of it. A statement by the appellant before Kelly J. indicated that after leaving the house at Braddon he attended at the Woden Valley Hospital Drug and Alcohol Unit where he was placed on a methadone program. He remained in Canberra for some six weeks after leaving the house at Braddon and then went to Lithgow. On 22 September 1988, Radecic was arrested in Lithgow and extradited to the Australian Capital Territory. He was committed for trial to the Supreme Court of the Australian Capital Territory on a charge of conspiracy to supply heroin on 8 November 1988 and was granted bail self of $5,000.00 with a surety of $2,000.00. On 22 February 1989, in the Australian Capital Territory, he was sentenced to imprisonment on a traffic charge for four months, which was to date from 21 January 1989. In June 1989 he travelled to Queensland and, as a consequence, failed to report three times a week to the police, which was a condition of his bail. A warrant was issued for his arrest. From June 1989 to November 1989, he had ongoing therapy from a clinical psychologist at the Gold Coast. During this period he remained narcotic free. A report from the psychologist, which spoke favourably of the appellant's response to treatment, was before Kelly J. He was apprehended in Queensland on 4 December 1989 and was extradited to the Australian Capital Territory and was in custody until he was sentenced on 9 March 1990.

13. When Diamond and Tebbutt were arraigned on 1 March 1990, counsel for the Crown indicated to Kelly J. that a notice declining to proceed further in relation to a charge of conspiracy to supply heroin against the appellant would be filed. His Honour was informed that instead of that indictment, it was proposed to present an indictment alleging 20 counts of supplying heroin against him. On being so arraigned, the appellant pleaded guilty to each of those charges. The appellant says that on the preceding day, he was approached by his counsel at the Belconnen Remand Centre and was told that the Crown would not proceed with the conspiracy charges, and was prepared to accept pleas of guilty to twenty charges of supplying heroin. He explains his decision to plead to those charges in these terms:

"See, what I was told was that if I am
found not guilty on the conspiracy charges that I
would be arrested there and then in court and
charged with the supply charges anyway. So to save
the court time and to gain the benefit of a guilty
plea, your Honour, I accepted to plead guilty to
the lesser charges."

14. The decision not to proceed on the conspiracy charge, but to proceed in respect of specified substantive offences fairly and correctly reflects the active but auxiliary role of the appellant in the heroin distribution operation from the house at Braddon. As Kelly J. noted, the tape recordings supported the particularised charges. Kelly J., in sentencing the appellant, accepted that he played a subsidiary role. There is no substance in this ground of appeal.

15. The same can be said of the complaint that his counsel failed, contrary to his instructions, to place mitigating circumstances before the Court.

16. There were before his Honour two statements by the accused which make specific reference to the personal circumstances of the appellant including his failed marriage, the death of his young son, his separation from his two children, and the nature of his relationship with a young woman whom he met in Queensland after leaving Canberra in June 1989.

17. The statements give a detailed account of the circumstances in which he went to the house at Braddon, the nature of his contribution to the house and his involvement in the sale and distribution of heroin.

18. When giving evidence before Kelly J., the appellant was asked:

" Can I just ask you to have a look at
these two sequential documents ...Is that a
statement in your own hand of matters that you
would seek to bring to the attention of the court
on your plea?
A. Yes, they are. The first one leads up
to the stage where I was arrested, and the second
one is from the time I left the A.C.T. in June of
89 up until the present date. "

19. All matters of mitigation on which the appellant has sought to rely are contained in the evidence placed before Kelly J.

20. The appellant's criminal history, while it contains no prior convictions in respect of heroin, is quite extensive. From 3 March 1978 to 23 February 1989 the appellant was dealt with on twenty-four occasions for traffic offences, many of which were serious, and in respect of a number of which he served terms of imprisonment. In addition to his offences against the traffic laws, there was a large number of other offences including stealing, receiving, unlawful possession, larceny, illegal use of a motor vehicle, negligence causing grievous bodily harm, breaking and entering with intent, forging a prescription and uttering.

21. As to drug related offences, on 15 May 1970, he received a suspended sentence for administering drugs. On a similar charge, on 27 August 1971 he was sentenced to nine months' imprisonment. On 20 August 1976 he was sentenced to imprisonment for twelve months on a charge of possessing cannabis. The sentence was suspended upon his entering into a recognisance to be of good behaviour for two years. On 10 February 1984 he was fined $200 on a charge of possessing utensils for smoking Indian hemp and $200 on a charge of possessing Indian hemp. On 9 April 1987 he was fined $300 for possessing a prohibited substance and $50 for possessing cannabis.

22. In respect of all these previous convictions Kelly J. said:

"It is a matter for regret that the offences
with which he is charged and his past record are
such as to make it impossible to impose other than
a substantial sentence..."

23. There is nothing in the evidence to indicate that his Honour placed undue weight on the appellant's criminal record, sorry though the record be. The remarks of Kelly J. quoted above are properly to be interpreted as meaning that the previous criminal history of the appellant was not one to entitle him to leniency. No error attends that conclusion.

24. The appellant claims that there was a disparity in the sentences he received compared with his co-offenders, and he says that Kelly J. erred in the characterisation of the appellant as a "medium-range dealer". Kelly J. accepted the appellant's statements concerning the manner in which he became involved in supplying heroin, and the nature of his role in its distribution. His Honour referred to a paragraph from Rinaldi Drug Offences in Australia Vol. 1, Sentencing (1986) pp 150-151 where the author said:

"As far as distribution of drugs is
concerned there are grades of culpability ranging
from the mass distributor down to the consumer
distributor. Leaving aside the offender whose
involvement is limited to a single incident, it is
convenient to discuss heroin trafficking under
three categories: professional, medium, and
end-of-the line. Speaking generally, prison sentences
in the range of seven to ten years can be expected
by offenders in the first category, four to six
years by those in the second category and two to
four years by those in the third category."
Kelly J. said:
"I would classify Mr Radecic as a medium
dealer, not much worse than an end-of-the line
dealer."

25. As is frequently the case with generalisations, the generalisation by Rinaldi has to be approached with some caution. In some circumstances, an end-of-the line dealer might be on a very large scale and such conduct would attract a very substantial term of imprisonment. As is plain from the material before the sentencing judge, the activities of Mr. Radecic were in the supply of heroin to end users. Over a short period he was engaged in a relatively large number of small retail transactions. The trial judge recognised that "he received no benefit from the supplies that he made except that he was supplied with heroin to feed his own addiction" and he recognised also the marginal benefit by way of provision of household necessities during the period of his stay at the house at Braddon. Mr. Radecic, in his submissions, asserted that he was "not a drug dealer and never had been". He said he was "simply there to do a friend a favour". The fact is that he played a not insignificant role in the fairly large scale retail distribution of heroin.

26. As to the complaint of disparity in sentence, on 9 March 1990 Kelly J. sentenced Michael Tebbutt to seven years imprisonment on each of two counts of conspiracy to supply heroin, the terms to be served concurrently. He ordered the sentence to date from 28 October 1989 with a non-parole period to expire on 27 April 1993. In imposing sentence, a number of other offences were taken into account pursuant to s. 21AA of the Crimes Act 1914.

27. Also on 9 March 1990 Kelly J. sentenced Jane Louise Diamond to four years imprisonment on her pleading guilty to two counts of conspiracy to supply heroin. The four years imprisonment on each count was to date from 4 July 1989 and to be served concurrently. He ordered that she be released on 3 July 1990 upon entering into a recognisance in the sum of $1,000.00 to be of good behaviour for three years on certain conditions, including undergoing such counselling in connection with drug dependence as the Director of Adult Corrective Services may direct. In August 1988, she had given birth to twin sons. She had no previous convictions. She had been in custody since 4 July 1989.

28. After a trial, Kerri Maree Cox was found guilty by a jury on a charge of conspiracy to supply heroin and two charges of possession of heroin. On 9 March 1990 Kelly J. sentenced her to five years imprisonment on the conspiracy charge with the non-parole period to expire on 18 July 1991, the sentence to date from 19 July 1989. In imposing this sentence, Kelly J. said:

"She was, as I find, merely a courier whose
addiction was used by others more unscrupulous
than she to further their own cynical ends."

On the other two counts she was sentenced to six months imprisonment on each count, to be served concurrently.

29. Vaso Davidovic had been convicted after a trial of conspiracy to supply heroin and possessing heroin for supply. He was the source of the heroin distributed by Tebbutt and Diamond, until he was arrested. Thereafter Kerri Maree Cox made a number of deliveries to them. He was sentenced by Kelly J. on 1 December 1989 to nine years imprisonment on both counts with a non-parole period of five years. On 28 March 1990, Davidovic was successful on appeal and a re-trial was ordered. On 18 May 1990 he was again convicted on both counts by a jury and on 15 June 1990 was sentenced by Gallop J. to seven years imprisonment on the conspiracy count with a non-parole period of five years, and in respect of the possession of heroin for supply he was sentenced to two years imprisonment with a non-parole period of twelve months, that term to be served concurrently with the term of imprisonment in respect of the conspiracy to supply heroin charge.

30. Having regard to the respective roles of each of these persons and their subjective circumstances, the effective sentence imposed on the present appellant is clearly not disproportionate.

31. As to whether the sentences were manifestly excessive, the trial judge, in imposing the sentence, said:

"having had the opportunity of seeing him in
the witness box and taking into account all the
matters which were put on his behalf, both
objective and subjective, I think the ends of
sentencing can best be achieved in this matter by
sentencing him to imprisonment for a period of 4
years in respect to each of the offences, the
sentences to be concurrent. I think the
appropriate non-parole period to fix is 2 years."

32. It is clear that Kelly J. approached his sentencing task with a compassionate and scrupulous attention to the evidence before him. The sentences imposed are well within the range of a sound sentencing discretion for offences of this type and disclose no error.

33. The appeals should be dismissed.