Regina v Juricic [2002] NSWCCA 170

New South Wales Court of Criminal Appeal

CITATION : Regina v Juricic [2002] NSWCCA 170 FILE NUMBER(S) : CCA 60406/01 HEARING DATE(S) : 8 May 2002 JUDGMENT DATE : 8 May 2002

PARTIES : Regina v Rick Juricic JUDGMENT OF : Greg James J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/41/0046; 01/41/0069 LOWER COURT JUDICIAL His Honour Judge Shillington QC OFFICER :

COUNSEL : Applicant - In person Crown - D.M. Woodburne SOLICITORS : Applicant - In person Crown - S.E. O'Connor CATCHWORDS : Sentencing - severity appeal - no question of principle involved. LEGISLATION CITED : Crimes Act 1900, s112(1) Crimes (Sentencing Procedure) Act 1999, s5 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 DECISION : Application for leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60406/01

GREG JAMES J CARRUTHERS AJ

Wednesday, 8 May 2002 REGINA v Rick JURICIC Judgment 1 GREG JAMES J: I agree with the orders proposed, and with the additional direction proposed by his Honour, and with his reasons. The judgment of the Court therefore, shall be as his Honour Carruthers AJ proposed. 2 CARRUTHERS AJ: Rick Juricic seeks leave to appeal against sentences imposed upon him by his Honour Judge Shillington QC in the District Court at Bega on 5 June 2001, in respect of four offences of break, enter and steal, in contravention of s112(1) of the Crimes Act 1900, for which the maximum penalty is imprisonment for 14 years. A further offence of possess prohibited drug was taken into account by his Honour on a Form 1. 3 On each charge the applicant was sentenced to imprisonment for three years to date from 26 March 2001, with a non parole period of two years and three months. Thus, all sentences are to be served concurrently. His Honour ordered that the applicant be subject to the supervision of the Probation Service upon his release. 4 The applicant was born on 22 November 1971 of Croatian parents. He was, however, brought up by foster parents. His life has been somewhat erratic as a result of tensions with the foster parents and his actual mother, whose identity he eventually ascertained after some years. 5 He has a history of alcohol and drug addiction but within recent years this has been controlled, although unfortunately, it was replaced by a gambling addiction. Nevertheless, he has some history of a number of years regular employment on a deep sea fishing trawler. 6 He has a prior criminal record in Victoria, commencing on 3 April 1990 and concluding on 1 February 2000. His sentences include a number of periods of imprisonment, in some cases for quite serious offences. However, all his matters were disposed of in Magistrates' Courts in Victoria. 7 On 14 February 2001, at the Eden Local Court of this State, he was placed on a bond under s9 of the Crimes (Sentencing Procedure) Act 1999, for maliciously destroying and damaging property. 8 The background of the subject offences is as follows. On 21 August 2000 the applicant jemmied open the front window of the Great Southern Hotel at Eden. He then entered the premises and opened the safe kept behind the bar with a pair of bolt cutters he had brought with him. The applicant stole a box containing $6,300, and a tool box containing a large amount of coins, amounting to $1,131. (This was Count 1.) 9 The applicant was arrested on 9 December 2000 in relation to this offence, which he admitted. He was granted bail. 10 Between 19 and 22 February 2001, whilst the applicant was on bail, and still on the terms of the bond to which I have referred, the house of Judith Barnes, an elderly woman who was absent in hospital, was broken into. Approximately $6,500 worth of property was stolen from the premises. The Crown case was that the goods were loaded into a co-offender's vehicle and taken to the applicant's home. The theft was discovered by Mrs Barnes' daughter, who had gone to the house to prepare it for sale, following the death in hospital of Mrs Barnes. Later in March 2001, some of the stolen goods were located at the rear of the applicant's unit. Police executed a search warrant on 26 March 2001 and found the applicant wearing, using and in possession of a substantial amount of the stolen property. (Count 2.) 11 On the evening of 9 March 2001, the applicant broke into the office of the Idlewilde Motel, which is near Pambula and stole a cash box, a safe and $500 in cash. (Count 4.) 12 Later on the same evening, the applicant broke into the office of the Merimbula Caravan Park and stole cigarettes to the value of $420 and cash to a total value of $1,370. (Count 3.) 13 On 14 March 2001, the applicant pleaded guilty at the Eden Local Court to the offence of breaking, entering and stealing from the Great Southern Hotel. The applicant was committed for sentence to the District Court, and bail was continued. 14 On 26 March 2001 the applicant was arrested and interviewed in relation to the three outstanding matters of break, enter and steal. He denied knowledge of the two offences of 9 March 2001. A co-offender, Sorrell, was interviewed and he implicated the applicant in the offence, and agreed to give evidence against the applicant. This did not become necessary. 15 In respect of the offence of break, enter and steal from the home of Mrs Barnes, the applicant participated in a record of interview, in which he told police that he went to the home alone, unaware of Mrs Barnes' circumstances. He admitted stealing the property located at his home, but did not provide an explanation as to items not recovered, and declined to answer any questions concerning a co-offender. He was refused bail. 16 On 10 April 2001 the applicant pleaded guilty to the three offences of break, enter and steal at the Bega Local Court. He was committed for sentence to the District Court, and bail was refused. 17 On 5 June 2001 at the Bega District Court, the applicant confirmed his pleas of guilty to the various charges. However, the applicant's solicitor indicated that there was a dispute of fact regarding some of the items stolen from Mrs Barnes' property. The applicant gave evidence that Kevin Sorrell had, in fact, broken into Mrs Barnes' property, and then turned up at the applicant's house with some of the goods. The applicant then asked Sorrell whether there was a video in the house. They then returned to Mrs Barnes' house and Sorrell went in and stole the video for the applicant. The applicant was waiting outside the house in a motor vehicle, and with the stolen property, drove Sorrell away from the premises, according to his version of the facts. The applicant said that Sorrell kept bringing items stolen from the house to his home. The applicant kept and used the items he wanted, and dumped some of the other items outside his place. The applicant then said that when he gave the record of interview about the offence he was protecting Sorrell. He admitted his participation in the other offences and said he had a gambling problem. 18 In his remarks on sentence, his Honour indicated his scepticism of the applicant's account, insofar as the offence at Mrs Barnes' property was concerned but, nevertheless, concluded: "I'm not prepared to find that what you have indicated is untrue. You are, of course, in any event, because of the law of common purpose, responsible even if it was Sorrell who went into the house alone and took the items out of the house. You obviously went there with him in common purpose, and you are responsible in law for what he did, if your account is the correct one". 19 His Honour took into account the applicant's pleas of guilty, his subjective circumstances, including a work injury, his family situation, support of his former partner, and his desire to return to employment in the future. His Honour specifically took into account the applicant's evidence, the pre-sentence report and the submissions of the applicant's solicitor. 20 The applicant appeared unrepresented before this Court, and indeed, prepared his own grounds of appeal and submissions. The applicant has informed the Court today that this material was prepared after consultation with a fellow inmate, who professed some knowledge of criminal law. I quote the three grounds of appeal verbatim: "Ground 1 - The learned trial judge gave a very sever (sic) sentence considering that I had no prior convictions in the State of New South Wales, and in particular:- (a) The use of prior convictions from other states was prejudicial towards me. Ground 2 - My legal representative failed to obey my instructions that I was not guilty of the break and enter Judith Barnes matter and that:- (a) I instructed him to the effect that I was not guilty and that another part (sic) had committed the crime. Ground 3 - My defence was impaired in particular:- (a) I was placed at a disadvantage after a confrontation with officer in the court cell." 21 The written submissions are in the following form, which I again quote verbatim: " Introduction There are two (3) (sic) separate matters, which for the sake of convenience, be referred to as the Break Enter and Steal matters. One (drug) matter dismissed. And in particular the Break Enter and Steal matter, causing malicious damage to property for conveince (sic) to be referred to as the Judith Barnes matter. 1.1 The sentence was sever (sic) seeing that I had no prior convictions in the State of New South Wales. My Solicitor raised my convictions in Victoria much to my amazement. There was what could be perceived as prejudicial towards me after the court had false information that I had convictions in the State of New South Wales. It was later found out that it was my brother and not me. 1.2 I submit that the sentence was excessive in light of me having no convictions in this state. The prejudice towards me by the raising of suspected convictions in this state that turned out to be convictions of my brother may have caused the learned judge to view me and my family in a poor light. 1.3 My instructions were specific to my Solicitor that I was not guilty of the Judith Barnes matter I gave him the name of the offender and he wrote that on my charge sheet I tender that sheet. A very angry situation arouse (sic) out of his unwarranted comments to me that has cause (sic) my defence to be impaired and has caused a miscarriage of justice. I recall the conversation words spoken to the effect:- He said I am not going to go into court and defend you if you claim that you are not guilty 'because I don't believe you'. 1.4 A very angry confrontation took place, after that I was not able to think straight due to many years of drug taking. 1.5 Some time latter (sic) before my Court appearance I asked officers could I wear my new suit that had been specially bought for my Court appearance. The Court officers refused to let me wear the suit. I protested very strongly, I was attacked by several officers who assaulted me and caused me some minor injury, there was a lot of blood on me. This action caused me not to be able to think properly. 1.6 While it was my responsibility to dismiss the Solicitor I was not of the right mind and was not able to comprehend what was happening, therefore my defence was impaired. I submit that at the time of the hearing I was overwhelmed by the prior events, and this has caused my defence to be impaired. While the Court may consider granting a new trial I would be more than satisfied with a reduction in sentence." 22 It may immediately be noticed that no appeal against the conviction on the Judith Barnes matter has been filed. This is the only matter in respect of which the applicant has expressed concern as to whether he was rightly convicted. 23 He has informed the Court that after the sentence by his Honour, he applied to the Legal Aid Commission for legal aid in relation purely to the question of sentence in respect of all matters. Advice was received from a solicitor, practising in the criminal law, to the effect that there were no grounds which would justify a challenge to the sentences imposed by his Honour, and accordingly, legal aid was refused. 24 When the matter came before this Court this morning, the applicant was given the opportunity of applying for an adjournment, so that he could lodge an application with the Court for an extension of time in which to appeal against his conviction on the Judith Barnes matter. He indicated his concerns about the basis upon which Judge Shillington had determined, in reliance upon the principle of common purpose, that he was guilty of the Judith Barnes matter, on the assumption, of course, that it was the applicant's version which was the true one. 25 The matter was discussed at some length, between the members of the Bench and the applicant, and eventually the applicant indicated that he was content to proceed with the application for leave to appeal purely against sentence. 26 Speaking for myself, I have no concern at all about the correctness, on the applicant's version of events relating to the Judith Barnes matter, of his conviction for that offence. Thus, I can see no possible potential miscarriage of justice by the matter being dealt with today, purely on the question of sentence. 27 Dealing specifically with the matters that were referred to in the grounds of appeal and the written submission on sentence are concerned, it is obvious from the material which has been put before this Court in the appeal book, that the applicant's full prior criminal record in Victoria was put before the judge in the customary form by the Crown. Unfortunately, it would appear that there was some confusion, so far as his prior record in New South Wales is concerned, in that apparently originally the Crown presented a document which related to the prior criminal record of his brother. However, that confusion was cleared up, and his Honour was presented, for the purpose of finalising the matter, with the prior record of the applicant in New South Wales. This related to the matter to which I have made reference, which was dealt with at the Eden Local Court, and in respect of which a bond was imposed. So there is no substance, with respect to the contention that the use of prior convictions from "other states", was prejudicial to the applicant. 28 As to the contention that the applicant's defence was impaired by the fact that he had a confrontation with an officer in the court cell, because he was not permitted to wear the suit which he wished to wear, and such confrontation, according to the submissions, resulted in a minor injury being inflicted upon him, the matter was left to rest purely with the submissions. 29 As one reads the proceedings before his Honour, there seems to be no difficulty, so far as the presentation of the applicant's case was concerned, and I am not persuaded that what is contained in the written submissions, and in Ground 3, is such as to undermine the ultimate integrity of the sentencing process. 30 There was one matter which was dealt with under a Form 1 for possess prohibited drug. This means that the applicant had the benefit, by the ultimate sentence which he had imposed upon him, of concurrent sentences and the taking into account of the possess drug matter. In relation to three of those offences, they were committed whilst the applicant was on conditional liberty, both in respect of a bond and in relation to bail on the serious break, enter and steal at the hotel. (Count 1.) 31 Albeit the applicant does not seem to appreciate this fact, perhaps because of the advice he has received whilst in custody from a fellow inmate, he was, in fact, dealt with extremely leniently. The clearest indication of his Honour's leniency is the fact that each of the sentences was ordered to be concurrent. Cumulative or partly cumulative sentences, could well have been imposed by his Honour, consistent with the principles laid down by the High Court in Pearce v The Queen (1998) 194 CLR 610. 32 I would propose therefore, that in the circumstances, the application for leave to appeal against sentence be granted but that the appeal be dismissed. 33 Lest there be any doubt about the matter, I would propose that this Court direct, consistent with s 5 of the Crimes (Sentencing Procedure) Act 1999, that the applicant is to be released at the expiration of two years and three months, and that he is to be subject to the supervision of the Parole Service.