R v Zrinski [2015] NSWDC 417

District Court New South Wales

Medium Neutral Citation: R v Zrinski [2015] NSWDC 417 Hearing dates: 15 May 2015 Date of orders: 15 May 2015 Decision date: 15 May 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment for a period of 18 months, that term of imprisonment is suspended on the condition that the offender enter into a bond to be of good behaviour under s 12 of the Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW – Sentence – Form 1 – Supply prohibited drug – Possess prohibited drug – Goods in custody – Hindering police – Failing to demonstrate rehabilitation – Risk to community if offender continues to offend Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Jessica Jade Zrinski Representation: Counsel: Mr S Fraser - The offender

Solicitors: Director of Public Prosecutions File Number(s): 2012/326912

SENTENCE 1. HIS HONOUR: Jessica Jade Zrinski is a person who appeared before me at least six times over the past 12 months. When the matter was first before me I granted her an adjournment under s 11 of the Crimes (Sentencing Procedure) Act. From that date Ms Zrinski has lamentably failed to indicate that she has a realistic attitude towards rehabilitation, at least in so far as it concerns her own drug use. Despite repeated promises that she will give up drugs and has given up drugs, every objective circumstance shows that she has not done so. 2. On the last occasion she was here I gave her one last chance. I required that she be closely supervised by the probation and parole service and that weekly urinalysis was done. I told Ms Zrinski that if for some reason probation and parole did not do weekly urinalysis she should arrange her own. The matter has come back before me with not a single urinalysis test to be put before me and the most recent pre-sentence report tendered today indicates that she told probation and parole service that she had used drugs. 3. Ms Zrinski's attitude towards these proceedings has also been appalling, she was regularly late to court, on one occasion explaining that she wanted to get her nails done for court. 4. Ultimately however as Mr Fraser reminds me I am not to sentence Ms Zrinski for failing to demonstrate rehabilitation I am to sentence her for her original offence, taking into account of course the poor prospects of rehabilitation that the past 12 months have demonstrated, and so I will turn now to what occurred on 21 October 2012 when Ms Zrinski was first arrested. Police saw her and her then boyfriend Chris Misefski and another man in a car. Because of their behaviour police asked them all to get out of the vehicle and began searching it. They found a number of drugs, including 20 brown pills which proved to be MDMA with a total weight of 6.156 grams. The offender pleaded guilty to supplying those drugs in the sense that she had them in her possession for the purposes of supply, that being something she did to assist her then boyfriend by, as she said to police, selling them at parties. Also found within the car was a small quantity of cocaine and $100 in the form of two $50 notes, the offender could provide no reasonable explanation as to how she came to be in possession of that money and so she asks me to take into account when I sentence her for the supply prohibited drug matter, two charges, one possessing the cocaine and the second, goods in custody relating to the money. 5. There is another matter which I am to deal with, an offence on a s 166 certificate of hindering police. She told police that some other drugs which were found were hers when they were in fact those of her boyfriend. Police charged her with hindering police in those circumstances, saying that there was a delay in police investigations in relation to the true ownership of the drugs. 6. Ms Zrinski pleaded guilty at an early opportunity. She also assisted the authorities, I will be very circumspect in what I say about this matter, in fact I will say little more than that because I have formed the opinion, consistent with what Mr Fraser asked me to do, that for her early plea of guilty and assistance to the authorities I have decided to impose a sentence upon her which is 40% less than would otherwise have been, and the assistance has also been one of a number of factors which have led to me to decide to impose a different form of sentence from that which would otherwise have been the case. 7. The starting point for the actual type of sentence which should be imposed is of course the repeated authorities from the Court of Criminal Appeal which say that those who traffic to a substantial degree should receive sentences of fulltime custody unless there are exceptional circumstances. Here I am not satisfied that Ms Zrinski was trafficking to a substantial degree. She does have prior matters on her criminal history but nothing for drug supply and there is no evidence that the 20 tablets she was in possession of for the purposes of supplying on this occasion were part of an ongoing operation. Twenty tablets in themselves, whilst a significant quantity are not such that I would be satisfied that she was trafficking those in the sense that they involved drug trafficking to a substantial degree. So she does not need to demonstrate exceptional circumstances before I impose a sentence of other than fulltime custody. That does not mean that a sentence of fulltime custody should otherwise be imposed but such a sentence is very much a sentence of last resort. 8. I do take into account that apart from the admitted criminal activity of buying drugs, or at least obtaining drugs and using them over the past year Ms Zrinski has apparently committed no further offence in the past two and a half years since her initial arrest. That is a matter in her favour. 9. It is troubling that Ms Zrinski has repeatedly failed to appreciate the position that she is in. I have commented on her attitude towards these proceedings, it is demonstrative of a person who apparently believes that she can get through life telling lies, acting as she wishes to act, with no consequences befalling her. 10. Mr Fraser asks that I impose a suspended sentence of imprisonment. I accept that there is at least a good possibility that Ms Zrinski will be unable to comply with the basic conditions of such a suspended sentence, namely that she is of good behaviour for the period of the bond. But I also accept that there is no principle of law that says a suspended sentence of imprisonment is inappropriate in the case of someone who is likely to fail. True it is that one might be more careful about imposing a suspended sentence on someone who was likely to commit further offences where those offences were, for example, involved significant violence. That is not of course to underestimate the harm that drug supply causes. That is to say that whilst the prospects of Ms Zrinski, being of good behaviour over that period of the bond are poor, the prospects that she will, in that period supply other drugs is also, on the material before me, somewhat unlikely. The risk I am taking I guess is that Ms Zrinski will not be of good behaviour by continuing to use drugs. If she does she will come back before me and it will then be probably the time that I will do what the Crown asks me to do today, send her into fulltime custody. 11. I impose upon Ms Zrinski sentence as follows. 12. For the s 166 matter I sentence her under s 10A of the Crimes (Sentencing Procedure) Act that is there is a conviction with no further penalty. 13. For the supply prohibited drug matter, taking into account the two matters on the Form 1, I sentence Ms Zrinski to imprisonment for 18 months that term of imprisonment is suspended on condition that she enter into a bond to be of good behaviour for the period of the bond under s 12 of the Crimes (Sentencing Procedure) Act. Conditions of the bond are as follows: 14. She is to be of good behaviour. She is to accept the supervision of the probation and parole service including psychiatric and psychological counselling and treatment which the probation and parole service recommend or require for her. She is to take all medication prescribed for her. She is to participate in any drug and alcohol counselling as directed or recommended by the probation and parole service. She is to live with her father which means that she must stay at his place every night, unless permission to stay overnight elsewhere is granted in advance by the probation and parole service.