2011-02-16 R v Silkeci (SCC 19 of 2008)

HIS HONOUR: As to the sentencing Yaresul Silkeci.

1. The offender is Yaresul Silkeci. He was born in 1973. He committed the subject offence, for which I am to impose sentence upon him, on 21 August 2007. He was then aged
34 years four months. He is now aged 37 years two months.

2. The offender is the fourth of his parents’ six children. His parents are of Turkish descent. He was born in Sydney, New South Wales. His father died during November 1995. His mother and siblings are alive. He has a close relationship with his mother and each of siblings. I do not see anything in his background relevant to his commission of the subject offence.

3. The offender and his siblings were raised by their parents in a caring and supportive, albeit strict, environment. I do not see anything in his upbringing relevant to his commission of the subject offence.

4. The offender attended primary and secondary schools in Sydney, although I do not know which schools. He left school during Year 10 to commence employment in the family’s business, a takeaway food business. After coming to Canberra to live, he completed a course in hospitality at the Canberra Institute of Technology.

5. After leaving school, the offender commenced, as I have said already, employment in his family’s takeaway food business. Since leaving that business, he has been employed in other businesses, including an older brother’s takeaway food business. When between employments, he has received the unemployment allowance from Centrelink. He has been employed as the mail room supervisor in the head office of a Commonwealth Government department for the past four years six months. He is regarded as a diligent, careful and professional employee by his supervisor, see Exhibit 2.

6. The offender is married. He and his wife are the parents of two children, one aged 13 years and the other 10 years. I assume, in the absence of being told, that, as his wife is in employment, his wife and their children are partly dependent upon him.

7. The offender commenced to drink alcohol when he was aged 18 years and he was able to keep the extent of his drinking of alcohol under control. However, following the death of his father during
November 1995, he increased the extent of his drinking of alcohol and he commenced to use prohibited drugs, namely cannabis and amphetamines. Not surprisingly or unexpectedly, over time, he increased his use of cannabis and amphetamines until he was using them everyday and he used other prohibited drugs such as methylamphetamine and MDMA. He was using these drugs until his arrest for the subject offence.

8. Because he was spending his money on the purchasing of prohibited drugs, the offender turned to gambling in the hope of “winning” money. Unsurprisingly, he did not win money from gambling, which aggravated his financial difficulties and contributed to his commission of the subject offence.

9. Notwithstanding his past use of alcohol and prohibited drugs, the offender enjoys good physical and mental health.

10. The offender did not have a criminal record at the time when he committed the subject offence. However, on 22 August 2007, the day after the subject offence, when police searched his home, police found a small quantity of cannabis in his home and on 28 February 2008 he was fined $50 for the offence of possessing cannabis.

11. The circumstances in which the offender trafficked in a controlled drug other than cannabis, namely methylamphetamine, which circumstances brought the offender before the court, are not in dispute. Those circumstances are stated in the statement of facts, see Exhibit A. Taken from that statement, this is what happened.

12. Police had obtained warrants to intercept conversations on mobile telephones used by the offender and his brother-in-law,
Mr Andros Klobucar.

13. At about 11.35 am on 21 August 2007 a conversation in the Croatian language between Mr Klobucar and an unknown person was intercepted. This conversation included references to a prohibited drug and to details of a proposed meeting.

14. Following this conversation, Mr Klobucar sent three text messages from his mobile telephone to the offender’s mobile telephone; the first at 11.39 am, the second at 11.40 am and the third at 11.43 am. These messages told the offender that Mr Klobucar had arranged to purchase a quantity of a prohibited drug and that he was getting the purchase monies ready to effect the purchase.

15. At 11.55 am Mr Klobucar called the offender and they talked about the proposed purchase of the prohibited drug, but I do not have details of that conversation.

16. At 4.30 pm the offender, who was under police surveillance, met
Mr Klobucar, but I do not have details of where they met, and Mr Klobucar handed a parcel to the offender. The offender does not dispute that this parcel contained $25,000.00 in cash.

17. The offender left wherever he had met Mr Klobucar and he drove his car to somewhere in Pyrmont, in Sydney, where, at 8.13 pm, he met an unknown person to whom he handed over $25,000.00 cash in exchange for 144 grams, about 5 ounces, of methylamphetamine.

18. At 8.19 pm the offender sent a text message from his mobile telephone to Mr Klobucar’s mobile telephone in which he wrote, “All good.”

19. At about 11.15 pm the offender arrived somewhere in the ACT, but I do not have details of where, and police, armed with a search warrant, stopped and searched his car, finding a package containing a white powder under the driver’s seat of the car. Analysis of the white powder revealed it to weigh 144 grams and to be 59.4% or 85.47 grams methylamphetamine.

20. On 22 August 2007 the offender was charged with the offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, and, after being charged, he was taken before a magistrate in the ACT Magistrates Court after which the proceedings were stood over to 12 September 2007 and he was released from custody on bail. He has been at large on bail thereafter.

21. On 12 September 2007 the offender appeared again before a magistrate in the Magistrates Court and, on his being arraigned, he pleaded not guilty to the charge and the proceedings were stood over to
1 November 2007 for a case management hearing. I do not appreciate the basis upon which the offender pleaded not guilty, however, be that as it may, an offender cannot be forced to plead guilty to a charge notwithstanding the strength of the Crown’s case. However, an offender who is guilty of an offence ought to plead guilty to it at the earliest appropriate opportunity so as to ensure the largest discount in sentence.

22. In due course, on 22 February 2008 the offender was committed to this court for his trial.

23. On 9 November 2010, after 26 appearances in this court, the offender appeared before a judge of this court for arraignment and, on being arraigned with the charge, he pleaded guilty to it and the judge fixed
8 February 2011, later changed to 10 February 2011, for the sentencing proceedings. I find it difficult to understand how this offender, found as he was in possession of 114 grams of methylamphetamine, could appear 26 times in this court before entering a plea on arraignment.

24. Accordingly, on 10 February 2011 the offender appeared before me on the sentencing proceedings. I received documentary material from the Crown prosecutor and the offender’s counsel and I heard evidence from the offender and submissions as to sentence from counsel, after which I stood over the sentencing of the offender to today.

25. I am now to impose sentence upon the offender for the offence of trafficking in methylamphetamine to which he has pleaded guilty.

26. The offence of trafficking in a controlled drug other than cannabis, in this case methylamphetamine, is an offence contrary to section 603 (7) of the Criminal Code 2002, for which the prescribed penalty is imprisonment for a maximum of 10 years or a fine of a maximum of 1,000 penalty units or both.

27. It is beyond doubt that trafficking in a controlled drug other than cannabis, whatever the other drug may be, is a very serious offence. The law, as I understand it to be, is that a person who traffics in a controlled drug should be sentenced to imprisonment to be served on a full time basis unless there are exceptional circumstances. The offender’s counsel, as I understand him, conceded that the offender may be sentenced to imprisonment but submitted that the non-parole period of that sentence, if there is to be a non-parole period, should be served on a periodic detention basis.

28. Trafficking in a controlled drug involves participating at some stage in the process of selling the drug to users of it for financial gain. The offender participated in that process by going to Pyrmont, handing over $25,000 cash in exchange for methylamphetamine and returning to Canberra with the drug. He was a necessary participant in the process of selling the drug to users of it for financial gain.

29. The offender was, at the time of his arrest, a regular user of cannabis and amphetamine. He did what he did for financial gain. He said that he was to be paid $500 for what he did.

30. The offender is entitled to have his guilty plea taken into account in the determination of an appropriate sentence for the offence. His guilty plea has a utilitarian value, having saved the time and costs of a trial, however short that trial may have been. However, in determining the discount in sentence to be given to the offender, the fact that the offender entered his guilty plea very late and the fact that the Crown’s case is strong to the point of being overwhelming must be taken into account. I intend to discount the sentence that I will impose upon the offender for the offence by 10% on account of his guilty plea.

31. The offender has shown his remorse by pleading guilty, albeit late, to the charge. He has expressed his remorse to his wife and to the author of the pre-sentence report. I accept his remorse to be genuine.

32. The offender has taken significant steps in his rehabilitation. He has ceased all use of prohibited drugs. He has ceased to associate with drug traffickers or users. He has sought counselling. He remains in full time employment, employment he had before when he committed the subject offence.

33. Although only time will tell, I think, in view of his steps in his rehabilitation, there is a better than even chance that the offender will not re-offend. He participated in the process of selling a prohibited drug to users of it because he had an addiction to cannabis and amphetamine and, now that he has overcome that addiction by ceasing to use any prohibited drug, he does not have any reason to repeat what he did.

34. Of course I must take deterrence into account. I see personal deterrence to be less important in this case than it might be in another case because of the offender’s better than even chance that he will not
re-offend. However I see general deterrence to be very important. It is something that cannot be ignored or undervalued. People who traffic in controlled drugs, whatever that drug may be, must be made aware that upon conviction following detection a sentence of imprisonment measured in years, not months, will likely be imposed for the offence.

35. I have not overlooked the offender’s evidence that his brother-in-law, Mr Klobucar, had provided him with $25,000 cash to purchase the drug from the supplier at Pyrmont and that the offender, if subpoenaed to attend court on the trial of Mr Klobucar, will “tell the truth” in court. But I have not given the offender a discrete discount in sentence for this evidence because I do not consider it to be an offer or undertaking to assist the Crown in the prosecution of Mr Klobucar.

36. What, then, having regard to what I have said about the offence and the offender, is an appropriate sentence to impose upon him for that offence?

37. I appreciate that in determining an appropriate sentence for the offence I must recognise the purposes of sentencing outlined in section 7 of the Crimes (Sentencing) Act 2005 and I must take into account such of the various matters referred to in section 33(1) of that Act as are relevant and known by me.

38. I say at the outset, and this perhaps needs not be said as it obvious, that as required by section 10 of the Crimes (Sentencing) Act 2005 I am satisfied, having regard to all other possible alternatives, that the only appropriate sentence for the offence is one of imprisonment, something, as I have said already, conceded by the offender’s counsel.

39. I have determined, balancing everything that I have said about the offence and the offender, that the starting point is imprisonment for
two years six months, which period I reduce by 10%, that is three months, to two years three months.

40. I consider that the period of two years three months should be apportioned into a periodic detention period of one year three months and a suspended sentence period of one year. I do that because, as I have said already, the offender has taken positive steps towards his rehabilitation and there is a better than even chance that he will not
re-offend.

41. Accordingly, Yaresul Silkeci, for the offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, to which you have pleaded guilty, you are convicted.

42. I sentence you to imprisonment for two years three months from
16 February 2011 to 15 May 2013.

43. I order, pursuant to section 11 (2) of the Crimes (Sentencing) Act 2005, that one year three months from 16 February 2011 to 15 May 2012 of the period of two years three months be served by way of periodic detention, with the first reporting day being 18 February 2011.

44. I order, pursuant to section 12 (2) of the Crimes (Sentencing) Act 2005, that one year from 16 May 2012 to 15 May 2013, being the balance of the period of two years, be suspended.

45. I order, pursuant to section 12 (3) of the Crimes (Sentencing) Act 2005, that you sign an undertaking as provided for by section 13 (2) of the Act to comply with the good behaviour obligations of a good behaviour order for the period of one year from 16 May 2012 to 15 May 2013.

ADJOURNED [9.57 am]