R v Giurgis [2001] NSWCCA 129

New South Wales Court of Criminal Appeal

CITATION : R v Giurgis [2001] NSWCCA 129 FILE NUMBER(S) : CCA 60788/00 HEARING DATE(S) : 11 April 2001 JUDGMENT DATE : 11 April 2001

PARTIES : Regina Mikel Guirgis JUDGMENT OF : at 1; Smart AJ at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0594 LOWER COURT JUDICIAL Dalgleish ADCJ OFFICER :

COUNSEL : M Grogan (C) J Crespo (A) SOLICITORS : S E O'Connor J Rigg CATCHWORDS : CRIMINAL LAW - appeal - appeal against sentence - supply of prohibited drug - failure to take into account subjective circumstances of the applicant CASES CITED: Crimes (Sentencing Procedure) Act 1999 s 44(2) Drugs Misuse and Trafficking Act 1985 s 25(1) DECISION : (1) Appeal allowed.; (2) Non-parole period reduced to eight months.

-IN THE COURT OF CRIMINAL APPEAL

No. 60788 of 2000

WOOD CJ at CL Smart AJ 11 APRIL 2001 Regina v Mikel GUIRGIS JUDGMENT

The applicant pleaded guilty in the District Court to one count of supplying the prohibited drug heroin, an offence for which the maximum penalty prescribed under s 25(1) Drug Misuse and Trafficking Act 1985 is imprisonment for fifteen years or a fine of $220, 000. The applicant was sentenced to sixteen months imprisonment with a non-parole period of twelve months.

The applicant appeals against the sentence imposed on the grounds that (1) the trial judge was in error in finding that no "special circumstances" existed.

Held: (Appeal allowed):

Ground 1: The trial judge failed to take into account "special circumstances" of the applicant There was a measure of misunderstanding on the part of the sentencing judge in relation to special circumstances. The trial judge's reasoning was not directed to the existence of subjective or other reasons that might have justified an adjustment of the proportion between the head sentence and the non-parole period. The relevant subjective circumstances show that the applicant was of a relatively young age and had made positive steps towards removing himself from the drug scene. It was in the interest of the applicant and the community that he be encouraged on the path of rehabilitation and for that reason that he be afforded the opportunity for an extended period of post release supervision.