Citation: Regina v Milos Zajac [2001] NSWCCA 361
Court: NSW Court of Criminal Appeal
Date: 14 September 2001
Judge(s): Sully J; Carruthers AJ
Background
The applicant was charged with supplying cocaine contrary to section 25(1) of the Drug Misuse & Trafficking Act 1985 (NSW), an offence carrying a maximum of 15 years' imprisonment. The supply occurred between November 1994 and March 1995 in the Cremorne and Neutral Bay area, where the applicant supplied small quantities of cocaine, typically half a gram to two grams at a time, to a limited number of associates. Two co-offenders who lived at his home were also charged in connection with the scheme.
The applicant was arrested in March 1995 but did not plead guilty until October 1999. He was sentenced in the Liverpool District Court on 26 April 2000 by Judge Goldring, who found him to be a low-level but established cocaine dealer. Relevant personal circumstances included a depressive illness, alcohol and cocaine addiction, two weeks spent in pre-sentence custody, and steps taken toward rehabilitation.
The applicant sought leave to appeal the sentence in the Court of Criminal Appeal, arguing it was excessive. Several distinct grounds were raised, including questions of parity with a co-offender, the weight given to his guilty plea, and the treatment of delay and illness in the sentencing exercise.
Legal Issues
- Whether the sentence was infected by a failure to properly apply parity principles in light of the sentence imposed on a co-offender
- Whether the sentencing judge gave insufficient weight to the utilitarian value of the guilty plea, given the principles in R v Thomson and Houlton
- Whether adequate weight was given to the delay between arrest (March 1995) and sentencing (April 2000)
- Whether the applicant's depressive illness was sufficiently taken into account as a mitigating factor
Decision
On the parity ground, the Court noted that the applicant's own legal representative had expressly submitted at the sentencing hearing that parity was not an issue and that the matter should be dealt with on its merits. Against that backdrop, the Court declined to uphold a ground that relied on disparity with the co-offender's sentence. The Court also noted that the evidence indicated the applicant bore greater culpability than that co-offender.
On the guilty plea, the Court accepted the Crown case was extremely strong and that the applicant had waited over four years from arrest before entering his plea. The Court was not satisfied the late plea reflected genuine remorse, though it acknowledged the utilitarian benefit of saving court time and resources. Importantly, the Court cautioned that the "utilitarian value of the plea" concept, as developed in Thomson and Houlton, should not be applied in a way that allows offenders, particularly drug traffickers, to avoid proper consequences simply by entering a strategically timed guilty plea.
On delay and illness, the Court found that Judge Goldring's remarks, while brief, were adequate. A sentencing judge is not required to produce lengthy analyses or artificial arithmetic calculations on these points. The obligation is to identify the relevant factors and bring them to account in an exercise the Court described, consistent with established authority, as an art rather than a science.
Having found no error in any of the grounds advanced, the Court concluded that cause had not been shown for its intervention and dismissed the appeal.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that an applicant who expressly disavows parity as an issue at the sentencing hearing faces significant difficulty later invoking disparity with a co-offender as a ground of appeal.
- A late guilty plea, entered more than four years after arrest in circumstances where the Crown case was strong, does not readily attract a finding of genuine remorse, though its utilitarian value in saving court resources remains a legitimate consideration.
- Under the principles in R v Thomson and Houlton, the utilitarian value of a guilty plea has limits: the Court signalled that the doctrine must not develop to a point where it permits drug traffickers to escape proportionate consequences through a carefully calculated plea.
- Sentencing judges are not required to produce detailed written analyses of every mitigating factor; identifying the relevant considerations and bringing them into account in a balanced way satisfies the sentencing obligation.
- The sentencing exercise was reaffirmed as an art rather than a science, resisting reduction to arithmetic formulas on any individual factor such as delay or illness.
Legislation and Cases Referenced
Legislation
- Drug Misuse & Trafficking Act 1985 (NSW), s 25(1)
Cases
- Lowe v The Queen (1984) 154 CLR 606
- R v Thomson and Houlton (2000) 49 NSWLR 383