Regina v Yerkovic [2000] NSWCCA 281

New South Wales Court of Criminal Appeal

CITATION : Regina v Yerkovic [2000] NSWCCA 281 FILE NUMBER(S) : CCA 60195/2000 HEARING DATE(S) : Wednesday 12 July 2000 JUDGMENT DATE : 12 July 2000

PARTIES : Regina v Mate Yerkovic JUDGMENT OF : Meagher JA at 18; Grove J at 2; Bergin J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/41/0020 LOWER COURT JUDICIAL Moore DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown/Applicant) S.J. Odgers with A. Hallas (Respondent) SOLICITORS : S.E. O'Connor (Crown/Applicant) Spencer, Whitby & Co (Respondent) CATCHWORDS : Criminal Law and Procedure - Sentence - Supply of Drugs - Relatively Minor Role - Declining To Act As Courier But Introducing Persons Who Might Be Willing - Assistance To Authority - Significant Value - Serious Medical Condition Of Offender - Finding Of Exceptional Circumstances Open To Sentencing Judge DECISION : Crown Appeal Dismissed.

IN THE COURT OF CRIMINAL APPEAL

60195/00

MEAGHER JA GROVE J BERGIN J

Wednesday 12 July 2000

REGINA v MATE YERKOVIC

JUDGMENT

1 MEAGHER JA : I will ask Grove J to give the first judgment. 2 GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Moore DCJ in the Wollongong District Court. 3 The respondent appeared before his Honour on two counts of knowingly taking part in the supply of a prohibited drug. The drug in question was methylamphetamine. 4 His Honour was also asked to take into account two matters on a Form 1, relating to possessing another prohibited drug, namely cannabis leaf, and a prohibited object, namely a canister of Liquid Fire pepper spray. His Honour sentenced the respondent to forty hours community service to be performed by way of attendance at an attendance centre. 5 It cannot be said that such a sentence causes other than surprise at first glance. However, the matter should be analysed in a little more detail. 6 The respondent played a relatively minor part in the supply of the prohibited drug. That is not to say, as his Honour observed, that the offence was not itself serious, nor is it to overlook the circumstance that the drug trafficking sub-culture is able to exist because many people will contribute what might be described as minor assistance. 7 The respondent came into contact with these people because it was said that as a result of an injury causing grave physical disability he was self-medicating with prohibited drugs. His Honour found that was a fact and no challenge to that fact finding has been offered. 8 As a result of his contact with these people engaged in criminal activity the respondent was invited to act as a courier of prohibited drugs. He declined the invitation but he did not decline the invitation to refer to the criminals persons who would be willing to undertake such a role. 9 In written submissions supplied to the Court by the parties there has been some debate as to the status of the respondent as a recruiter of couriers. The facts proved before his Honour and found by him show that the respondent's activity as a recruiter was no more than that which I have mentioned, together with driving a couple of the recruits to the premises where the traffickers were to be found. 10 The respondent was born on 18 February 1944. At the age of thirty nine he was subjected to coronary artery bypass surgery. That was a relatively young age to require such surgical intervention. He has since had further procedures of a surgical nature and evidence was before his Honour, again unchallenged, that it was a rare event for patients to survive initial coronary artery bypass surgery for twenty years. The respondent's initial surgery took place some sixteen years ago. 11 The evidence of Dr Ford, who is a consultant physician and cardiologist, also was that the respondent was suffering from continuing ill health as a result of this condition. Indeed, this was confirmed in the assessment of the probation and parole officer, who reported to his Honour in a pre-sentence report that the respondent was unsuitable to be placed on a community service order because of his ill health and would be unable to perform any of the work component of periodic detention. Those observations for present purposes sufficiently describe the respondent's personal physical condition. 12 The next matter to which reference should be made is the discount on sentence to which the respondent would be entitled as a result of his assistance to police authorities. It was common ground before the trial judge that the respondent had readily admitted his participation in the offences charged against him and there was a letter of comfort attached to the affidavit of Donald Bailey, the Police Commander of the Wollongong Local Area Command, which showed that the respondent had given significant assistance in a matter not connected with the charges against him. His Honour made reference to this and to the consequences of it and again found that he had been subjected to threats of a real nature and, once again, there has been no challenge offered to his Honour's finding in that regard. 13 The law in relation to the imposition of sentence for offences such as the present is clear and this Court has said over and over again, that offences of taking part in the supply of prohibited drugs must attract full time custodial sentences, unless exceptional circumstances can be shown. 14 His Honour clearly found that these circumstances were exceptional and, as a principal submission, counsel for the respondent has asserted that no error is demonstrated in that finding. I regard counsel's submission as correct. 15 If one combines what might be described as the relatively - and I emphasize relatively - minor participation of the respondent in the offence, together with the discount on sentence that he would be entitled to as a result of his significant and real assistance to authority, and if one takes into account in accordance with proper authority the condition of the respondent, it seems to me that that combination must attract the description of exceptional in the relevant sense. 16 Absent that combination, I would have been of a view that the sentence was manifestly inadequate but, as the sentencing judge remarked, the circumstances were most unusual and I would add that they were exceptional. 17 I therefore come to the conclusion that this appeal should fail and I would propose the Crown appeal be dismissed. 18 MEAGHER JA: I agree. 19 BERGIN J: I agree. 20 MEAGHER JA: The order of the Court therefore is the appeal be dismissed. **********