R v Wardini [2003] NSWCCA 249

New South Wales Court of Criminal Appeal

CITATION : R v Wardini [2003] NSWCCA 249 HEARING DATE(S) : 05/09/03 JUDGMENT DATE : 5 September 2003

JUDGMENT OF : Meagher JA at 1, 14; Sully J at 8; Smart AJ at 11 DECISION : Appeal dismissed.

CATCHWORDS : Objective seriousness of offence - Factors relevant to exercise of appellate discretion - Delay in charging accused. LEGISLATION CITED : Criminal Appeal Act 1912 Drug Misuse and Trafficing Act 1985 Regina PARTIES : v Louie Elias WARDINI FILE NUMBER(S) : CCA 60153 of 2003 COUNSEL : Crown: D Howard Respondent: P Strickland SOLICITORS : A: Crown Solicitor R: Paul Hardin Solicitor

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1260 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60153 of 2003

MEAGHER JA SULLY J SMART AJ

Friday, 5 September 2003 REGINA v WARDINI Judgment 1 MEAGHER JA: The court is now in a position to give judgment. 2 This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed by Judge O'Reilly in the Penrith District Court in 2003. The respondent, Mr Wardini, had pleaded guilty before his Honour to one count, namely, that he did aid, abet, counsel, procure, solicit and incite the commission by Mr Marcell Stephan of the offence of supplying a large commercial quantity of methylamphetamine. He had previously pleaded guilty in the Local Court on 18 November 2002. 3 This is an offence which arises under the combined operation of ss 27 and 25 of the Drug Misuse and Trafficking Act 1985. It is behaviour which the Parliament has taken very seriously indeed. It is criminal misbehaviour of the very worst sort and would normally demand an extremely heavy sentence of criminal incarceration. However, in the circumstances, his Honour taking everything into account sentenced the respondent to imprisonment for a term of two years with a non-parole period of eighteen months to be served by way of periodic detention. The Crown has appealed against this and said that this sentence has failed to reflect the objective seriousness of Mr Wardini's offence, and that his Honour gave disproportionate weight to subjective features. 4 One can see the basis on which the Crown has launched this appeal but on the whole I have come to the conclusion, after careful consideration of the facts, that the appeal should fail. The subjective features, which seem to me extremely strong, are that Mr Wardini was, in effect, pressured into the offence in order to discharge the very considerable debts which he had accumulated in his small time building business. He did not initiate the commission of the crime. He is not and never has been a drug trafficker. He had no prior convictions. He is very well spoken of. He is happily married with two young children. He pleaded guilty when charged, and there is a finding by his Honour which no one seeks to disturb that he suffers from remorse, that it is not merely the token remorse which is often said to be generated by a mere plea of guilty but is a real sense of remorse. He has done five and a half months of his sentence but the fact, I must say, which impresses me most is the question of delay. He was subjected to what seems to me inordinate and inexcusable delay. 5 The criminal conduct in which he engaged took place in November 2000 and yet he was not charged until March 2003. This to my mind is unforgivable and is not to be justified by the fact that the authorities were using that intervening period to round up other people. Nor is it excused by the fact that other offenders suffer comparable delays. 6 In all the circumstances of the case, I am unable to see any error of law in his Honour's judgment but, as his Honour Justice Sully pointed out in the course of argument, even if there were appellable error, that is not enough. I am of the opinion that the Crown has not satisfied us that any discretion which rests in us should be exercised in favour of the Crown to correct such error. 7 In these circumstances, I would, for those reasons, dismiss the appeal. 8 SULLY J: In agreeing with the order made by the presiding Judge, and I do agree with it, I wish to say for myself that my concurrence in the making of that order, in the current circumstances of the present Crown appeal, ought not be understood as indicating that I necessarily agree with the sufficiency of the approach taken by the learned primary Judge. 9 This was a serious offence, although it was, as it would seem, a one off offence. I think there is force in the Crown submission that it was incumbent upon the primary Judge to have a proper regard to the overall public interest, frequently explained and upheld by different Benches of this Court to ensure that any trafficking in illegal drugs, or any dealing of any kind in illegal drugs, is put down with every proper firmness. That is established public policy both on the part of the Legislature and on the part of the Courts. 10 What in the end causes me to concur with the proposed order is that for the reasons expressed by the learned presiding Judge, I am unpersuaded that even were error of law to be found, it would be a proper case in which to exercise the residual discretion of this Court in such matters. 11 I agree with the order proposed. 12 SMART AJ: I likewise agree with the order proposed by the presiding Judge. In my opinion, error has not been shown on the part of the sentencing Judge. The Judge correctly isolated the issue in this case, namely, were the circumstances so special that full time custody can be avoided without error of law. 13 I think that they were, and that is so particularly having regard to the delay and the factual situation which has been briefly summarised by the presiding Judge. 14 I also agree that even if error had been shown, this is not a case in which the Crown appeal should be allowed. 15 MEAGHER JA: Very well. The order of the Court is, therefore, that the appeal is dismissed.