R v Rotariu [2000] NSWCCA 546

New South Wales Court of Criminal Appeal

CITATION : R v Rotariu [2000] NSWCCA 546 FILE NUMBER(S) : CCA 60118/2000 HEARING DATE(S) : 6 December 2000 JUDGMENT DATE : 6 December 2000

PARTIES : Regina v Peter ROTARIU JUDGMENT OF : Simpson J at 1; Carruthers AJ at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0165 LOWER COURT JUDICIAL Neild DCJ OFFICER :

COUNSEL : S J Odgers SC - Applicant P Hock - Crown SOLICITORS : The Law Practice S E O'Connor

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Sentencing Act 1989 DECISION : Leave to appeal granted, appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60118/00

SIMPSON JJ CARRUTHERS J Wednesday 6 December 2000

REGINA v Peter ROTARIU Judgment

SIMPSON J : 1 The applicant seeks leave to appeal against the severity of a sentence imposed on him by Judge Nield in the District Court at Parramatta on 1 October 1999 following his plea of guilty to a charge that he supplied a prohibited drug. By s 25(1) of the Drug Misuse and Trafficking Act 1985 the applicant was exposed to a maximum custodial penalty of imprisonment for fifteen years. In addition he asked that the offence of having in his custody goods unlawfully obtained be taken into account pursuant to s 21 of the Criminal Procedure Act 1986. 2 Judge Nield imposed a term of imprisonment of five years and four months made up of a minimum term of four years and an additional term of one year and four months. The sentence was specified to commence on 6 May 1999, the date the applicant was taken into custody. In structuring the sentence as he did, his Honour expressly declined to find special circumstances pursuant to s 5(2) of the Sentencing Act 1989 justifying departure from the conventional proportions of the sentence. 3 The drug involved was heroin. Early in the morning of 6 May 1999 police executed a search warrant at the applicant's premises where they located in three different places a total of 50.1 grams of heroin and $3,275 in cash which was accepted as the proceeds of previous sales of heroin. This money was the subject of the goods in custody charge. The street value of the heroin seized was estimated at $25,050. 4 In April the applicant had sent $6,500 to his wife and children in Romania and the applicant admitted having supplied heroin on previous occasions in order to raise money for that purpose. The applicant was interviewed later on the day of his arrest and made admissions as to the identity of the drug and his knowledge of it and denied ever having used heroin. After a while he declined further to participate in the interview. He has, however, at all times accepted his guilt and the sentencing judge gave him credit for having pleaded guilty at the earliest opportunity. 5 There was very little of a subjective nature before his Honour and it appears that what was put to him was put in the form of submissions from the Bar table and not in the form of hard evidence. There is no transcript of the submissions. This Court is therefore dependent upon the findings of fact made by the sentencing judge. Those facts are not challenged. 6 The applicant was born on 8 June 1943. At the time of the offence he was just short of his fifty-sixth birthday. He is Romanian by birth but has lived in Australia since 1975 and is an Australian citizen. He has had a long-term relationship with his wife and they have two children aged seven and two years. All three remain in Romania. 7 The Crown concedes, by reference to sentencing statistics, that the sentence imposed is at the top of the range to be discerned from the sentencing statistics maintained by the Judicial Commission of New South Wales. Those statistics show that a minimum term of four years falls within the top six percent of sentences imposed by way of minimum or fixed term for this offence: A total sentence of five years falls within the top twelve percent (in fact the applicant's total term was five years and four months). His Honour more than once referred to the fact that the applicant had previous relevant convictions. There were convictions for supplying and cultivating hemp. On each charge the applicant was sentenced to imprisonment for five years with a non-parole period of three years. The sentences indicate that the offences were of some seriousness and it may be inferred that the quantity of the drug involved was substantial. The sentences were, however, imposed in November 1986 and have diminished impact as a result of the passage of time during which the applicant has had no further drug convictions. In 1988 the applicant was convicted of offering a bribe. After appeal he was sentenced to a fixed term of imprisonment for four months. 8 The first matter raised on behalf of the applicant concerned the manner in which the judge approached the question of the reduction in sentence to which the applicant was entitled by reason of his plea of guilty. This had a number of aspects. Firstly, his Honour doubted that the plea of guilty signified contrition. Indeed, he concluded that the applicant was not contrite, and it was in this context that he made one of the references to the earlier conviction. However, his Honour also acknowledged the need to give the applicant the benefit of the utilitarian value of the plea of guilty in recognition of the savings of court time and costs thus effected. This value also was reduced because the Crown case was overwhelming and the applicant could not have hoped to have succeeded on a plea of not guilty. Moreover the evidence would have been in short compass and thus the trial avoided would not have been a lengthy one. 9 The submission made on behalf of the applicant is that the sentencing judge failed to make the necessary distinction between the discount attributable to an early plea of guilty and the plea of guilty as evidence of contrition. In my opinion a proper reading of the remarks on sentence requires that this argument be rejected. 10 The prisoner pleaded guilty to the offence with which he was charged at the earliest appropriate opportunity. I consider that it was appropriate that the prisoner obtain legal advice as to his position and as to the plea that he should make to the charge. However, it must be said that the Crown's case against the prisoner was strong to the point of being overwhelming and that the prisoner could not have done anything realistically and sensibly other than to plead guilty to the charge. 11 The prisoner's plea of guilty must, therefore, be valued having regard to the strength of the Crown's case. The plea of guilty has the utilitarian effect of saving the State the cost of his trial but that trial would have been a relatively short one. 12 I doubt that the prisoner's plea of guilty carries with it one jot of contrition. I do not think that he is at all contrite for his supplying of such a deleterious drug as heroin to unfortunate addicts who use it. The fact that he has an earlier conviction, albeit many years ago and for cannabis, not heroin, confirms my view that he has not given a moment's thought to the people to whom he has supplied heroin. 13 In my opinion his Honour correctly evaluated the utilitarian effect of the plea of guilty by reference to the strength of the Crown case and the likely duration of a trial had there been one. 14 I would reject the challenge to the sentence on this basis. 15 Another matter which was raised in the written submissions concerned remarks made by the judge concerning previous supplies of drugs by the applicant but this matter was not pressed in oral submissions. 16 The second matter that was raised orally was that the sentencing judge erred in failing to take into account the fact that the applicant will experience imprisonment more harshly because of his inevitable separation from his family. This is a little curious. The applicant's family live in Romania. He would be separated from them in any event. I think the point sought to be made was, that because his family live in Romania, he will be unlikely to have the comfort of family visits, and his imprisonment will therefore be harsher when compared with that of other prisoners. This is a relevant factor but it is, in my opinion, of limited relevance. There was no other evidence as to the applicant's social circle in Australia or the likelihood he would have the benefit of prison visits from friends and associates. 17 I have not overlooked the fact that it was argued in the appeal that the applicant, when he was at liberty, was able to maintain contact with his family and had in fact visited them in Romania. I do not think the sentence has been shown to have been tainted by error in this respect. 18 The final argument was directed to the judge's refusal to find special circumstances. His Honour was emphatic in stating that he could not see a single special circumstance warranting variation of the proportions of the sentence. The argument was that the applicant was fifty-six years old at sentencing and that, in all the circumstances, it could be inferred that he would need a longer than usual period during which he would be eligible for release on parole and the absence of family visits was raised in this context also as something relevant to the division of the sentence to minimum and additional terms. 19 I do not accept that error has been demonstrated in this respect. It may be that a finding of special circumstances would have been open but it is by no means an error for his Honour to have declined so to find. 20 I have come to the view that the sentence, although a heavy one, was not outside the range of a legitimate sentencing discretion. I would grant leave to appeal but dismiss the appeal. 21 CARRUTHERS AJ: I agree. 22 SIMPSON J: The order of the Court will be as I have proposed. **********