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District Court 26 February 2010

R v Mikulic, Ante

[2010] NSWDC 33

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE POSSESS FIREARM UNLICENSED BERRETTA PISTOL. CRIMINAL LAW

Citation: R v Mikulic, Ante [2010] NSWDC 33
Court: District Court of New South Wales
Date: 26 February 2010
Judge(s): Nicholson SC DCJ

Background

The offender was observed by police driving a BMW in Waterloo with a passenger known to police for drug supply offences. When police approached the vehicle, they found heroin in a bag belonging to the passenger. A search of the offender and his vehicle revealed $8,500 in cash and three mobile phones.

The offender was taken to Redfern Police Station, where CCTV footage later showed him disposing of further heroin into a holding cell toilet. That heroin, totalling approximately 43 grams, was recovered before he left the station. He was initially released but re-arrested on the spot.

A subsequent search of premises associated with the offender uncovered additional heroin, other drugs, a Beretta pistol with ammunition, and a police badge. While on remand in custody, further heroin was also found in his possession. The offender pleaded guilty in the Local Court on 15 October 2009 to supplying 95 grams of heroin and possessing an unauthorised firearm. He also asked the sentencing court to take into account ten further offences on a Form 1.

  • What sentence was appropriate for the principal offences of supplying a prohibited drug (heroin, 95 grams) and possessing an unauthorised firearm (a Beretta pistol)?
  • How should the court assess the objective seriousness of the offences and the offender's subjective circumstances?
  • Whether special circumstances existed justifying an adjustment to the standard ratio between the non-parole period and the total sentence.
  • How to apply the principles of totality, parity, and discount for guilty plea across multiple offences and Form 1 matters.
  • Whether the offender was eligible for referral to the Compulsory Drug Treatment Correctional Centre.

Decision

Nicholson SC DCJ sentenced the offender on both the principal charges after working through the standard sentencing framework. The court assessed the objective criminality of the offences, noting the substantial quantity of heroin involved, the presence of a loaded illegal firearm, significant cash, and multiple mobile phones consistent with a supply operation. The additional discovery of heroin while the offender was in remand custody compounded the picture of serious ongoing drug involvement.

The court acknowledged the offender's subjective circumstances, including his history of drug dependence, and considered the prospects of rehabilitation. His Honour found special circumstances, which permitted a longer-than-standard parole period relative to the non-parole period, reflecting rehabilitation needs. A discount for the guilty plea was also applied.

On the firearm offence, the court imposed a sentence with a minimum term of 8 months commencing 23 February 2009. On the drug supply offence, the court imposed a minimum term of 2 years and 6 months commencing 23 October 2009, with a balance of term extending to 6 August 2014. The total effective sentence was 4 years and 8 months, with first eligibility for release on 22 April 2012. Because the total sentence exceeded three years, the court noted that only the Parole Board, not the sentencing court, could order release.

The court also addressed ten Form 1 matters, taking them into account in fixing the sentence for the drug supply offence, while noting that two of those matters (relating to the firearm) would more properly have been attached to the firearms charge.

Orders Made

  • Possess unauthorised firearm: Convicted. Minimum term of 8 months from 23 February 2009, expiring 22 October 2009; balance of term of 6 months and 15 days expiring 7 May 2010.
  • Supply prohibited drug: Convicted. Minimum term of 2 years and 6 months from 23 October 2009, expiring 22 April 2012; balance of term of 2 years, 3 months and 15 days expiring 6 August 2014.
  • Ten offences taken into account on Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances found.
  • Order for destruction of drugs.
  • Order for destruction of the Beretta pistol and ammunition.
  • Offender referred to the Registrar of the Drug Court for consideration of entry into the Compulsory Drug Treatment Correctional Centre at Parklea.

Key Takeaways

  • The District Court confirmed that an agreed statement of facts tendered by the parties does not relieve the sentencing judge of the independent fact-finding function; it merely limits the material from which facts may be drawn.
  • Where a total sentence exceeds three years in the District Court, the sentencing judge loses the power to order release to parole, and that function passes exclusively to the Parole Board.
  • Special circumstances can be found to extend the balance of term beyond the standard proportion where rehabilitation needs are significant, particularly in cases involving entrenched drug dependence.
  • Form 1 offences should ordinarily be attached to a principal offence of a similar kind; the court here noted, though without reversing the arrangement, that firearms-related Form 1 matters had been incorrectly attached to the drug supply charge.
  • Referral to the Compulsory Drug Treatment Correctional Centre remained available as a sentencing option where the offender met the eligibility criteria, including a history of drug offences and drug abuse.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases
- R v Gladue [1999] 1 SCR 688 (Canadian Supreme Court, cited on the task of resolving competing sentencing considerations)
- R v Cuthbert (1967) 2 NSWLR 329
- R v Rushby [1977] NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Pearce (1998) 194 CLR 610