Anargiros v R

Court of Criminal Appeal (NSW)|2016-06-23|Before: Ward JA, Price J, McCallum J

Judgment

WARD JA: I agree with Price J.
PRICE J: The applicant pleaded guilty in the Local Court to the following charges:

Sequence 1: between 15 January 2013 and 18 March 2013, the applicant supplied firearms three times or more, being one sawn-off .22 calibre rifle, one .22 calibre Remington rifle, one .22 calibre Winchester rifle and eleven .22 calibre pen guns contrary to s 51B(1) of the Firearms Act 1996 (NSW). Maximum penalty - 20 years imprisonment with a standard non-parole period of 10 years.
Sequence 13: between 15 January 2013 and 18 March 2013, the applicant manufactured prohibited firearms, being pen guns, without being authorised by licence or permit contrary to s 50A(2) of the Firearms Act. Maximum penalty - 20 years imprisonment.
Sequence 14: on 8 April 2013, the applicant supplied a prohibited drug, namely ephedrine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Maximum penalty - 15 years imprisonment and a fine of 2,000 penalty units ($220,000).

Upon being committed for sentence to the District Court, the applicant adhered to his pleas. He asked Bennett SC DCJ to take into account eight matters on a Form 1 when imposing sentence for the charge of supplying firearms three times or more (Sequence 1). These offences were:

The applicant did not give evidence during the proceedings on sentence but a psychologist's report, a number of medical reports, hospital notes and some character references were tendered.
During the remarks on sentence, the judge referred to the applicant's subjective circumstances in some detail. Other than those matters relevant to the applicant's health, the judge's remarks included: 1. The applicant was born in 1962 and was 54 years old at the time of sentence. 2. He had one offence on his criminal history of driving unlicensed in 2007. His Honour observed that it was unusual to see someone embarking on such serious criminal conduct without a greater antecedent criminal history. 3. He had been in custody since the date of his arrest and was on protection due to concerns for his safety. He had been compliant in custody and was not considered a management concern. 4. He was born in Greece and came to Australia as a child. He grew up in a supportive family and there was nothing in his background to explain his criminal actions. 5. He was previously married and has an adult daughter. A relationship of two years ended while he was on remand. 6. He made representations to the author of the pre-sentence report that he committed the offences because a friend's debt was placed on him when the friend could not be located. The applicant attributed his decision to offend due to concerns for his safety after being threatened by others involved. He stated that he was "so sorry" for his actions. His Honour was circumspect about these representations in accordance with the statement of principles in cases such as R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353.
The judge found that the applicant's explanation for his misconduct was inconsistent with his electronically recorded conversations and even if he had committed the offences to fulfil a debt it would make little difference to the punishment he would face.
His Honour concluded that the applicant had committed the offences for financial reward and expressed concern that the firearms would have found their way into the community and the use to be made by criminals of the manufactured pen guns.
The applicant's prospects of rehabilitation were said by the judge to be good but his Honour was not satisfied that the applicant was appropriately remorseful and contrite.

The applicant's health

The medical reports disclosed that the applicant suffered from dilated cardiomyopathy, chronic atrial fibrillation, obstructive sleep apnoea, dyslipidaemia and impaired liver function.
In a report dated 7 October 2014, Rima Nasr, psychologist, stated that the applicant reported that he was diagnosed with sleep apnoea and cardiomyopathy approximately two years ago, causing a rapid decline in his physical health. The primary symptoms that the applicant suffered from reportedly related to breathlessness, fatigue, dizziness and a lack of energy making daily responsibilities and self-care difficult to maintain. He engaged in fewer activities to avoid exertion. While this assisted with his breathing, the applicant said that his symptoms persisted.
The applicant told Ms Nasr that he fainted approximately monthly, requiring him to be placed in a 'safe cell' to be monitored regularly by prison staff. He had previously been placed at Long Bay Hospital for seven months where he spent large amounts of time in the clinic. The applicant said that his symptoms were worsening over time, causing him to feel anxious about dying in custody without the presence of his family. He stated that approximately seven months ago, he had a pacemaker and cardioverter defibrillator inserted. The applicant told Ms Nasr that while this had assisted with breathing, his symptoms persisted. He had been consulting with a cardiologist, Dr Phong Nguyen, in order to manage his heart condition. His medications included Lasix, Bicor and Plavix. Based on the information provided by the applicant, Ms Nasr opined that "[the applicant] is a high needs person medically, ingesting a large amount of medication to assist him with daily functioning." (Ex 1, p 5.)
In a report dated 23 February 2013, Dr Nguyen stated that the applicant was "a 51 years [sic] old man who was recently diagnosed of [sic] having cardiomyopathy and AF." (Ex 1, p 19.) Dr Nguyen stated that the applicant was reasonably stable with no sign of any acute heart failure. Dr Nguyen reported that "mostly his underlying cardiomyopathy is caused by perhaps the combination of viral induced [sic] and the heavily [sic] use of ice." (Ex 1, p 20). He advised the applicant that he needed to be on Warfarin.
Dr Sze-Yuan Ooi, in a report dated 28 January 2014, stated that the applicant had a dilated cardiomyopathy, persistent atrial fibrillation and recurrent syncopal episodes. A biventricular defibrillator had been implanted for the applicant's cardiac conditions.
In a Justice Health report dated 20 October 2014, Dr Suresh Badami noted that the applicant had cardiac disease with a pacemaker which was inserted in January 2014. He was housed in Parklea Correctional Centre and managed according to the advice of cardiologists in Prince of Wales Hospital. In an acute situation, the applicant would be taken to the nearest hospital for assessment and management.
Following a careful review of the medical evidence and Ms Nasr's report, the judge said that notwithstanding what appeared to be successful medical intervention, he accepted that "[the applicant] is at risk of his heart failing and it is a matter that I must bring into account when determining the extent to which [the applicant] should be kept in custody, which will impact more heavily upon him than it might on someone who was not so afflicted." (ROS p 23.)
The judge said, "[b]ecause of the severe physical impairment that is described in the medical reports, I propose to reduce the custodial component significantly in this case." (ROS p 25.)
As a result of the finding of special circumstances, the statutory ratio between the non-parole period and the head sentence was varied to 50%.

Ground 1: His Honour erred in finding that the applicant's poor health was relevant to the setting of the non-parole period, but not to the head sentence

Submissions

The applicant contended that, by confining the relevance of his poor health to the assessment of the non-parole period, the judge fell into error. The applicant argued that his poor health was relevant not only to the question of special circumstances, but also to the overall sentence. The applicant submitted that there was no certainty that he would be released on parole upon completion of his non-parole period; consequently, there was a real risk that he would experience a more onerous period of imprisonment, which may be defined by the head sentence rather than the non-parole period.
The applicant cited Betts v R [2015] NSWCCA 39 where RS Hulme AJ (Meagher JA and Hidden J agreeing) concluded that the sentencing judge erred in finding that the applicant's injuries were relevant only to the question of special circumstances.
The respondent submitted that had the judge taken into account the applicant's state of health in reducing the head sentence and in finding special circumstances, his Honour would have been erroneously double counting. The respondent cited R v Fidow [2004] NSWCCA 172; Bell v R; Jelisavac v R [2009] NSWCCA 206.
The respondent pointed out that the judge raised this very issue with the applicant's senior counsel who submitted that the judge's approach was an appropriate course.
As to the applicant's reliance on Betts, the respondent argued that the Court did not analyse how the applicant's poor health would be taken into account by mitigating the head sentence where the finding of special circumstances was made only for the reason of the applicant's poor health. Furthermore, the Court did not allow the appeal.
Another submission was that there was nothing in the applicant's case to support a conclusion that there was a real risk that his health would adversely affect his ability to make or comply with conditions of parole.

Consideration

During the proceedings on sentence, the following discussion took place between the judge and senior counsel for the applicant (Tcpt, p 12(4)-(19)): "SUTHERLAND: …I don't labour the point but I do seek to bring to your Honour's appropriate consideration the ongoing and very serious medical condition that this man labours under. Can I point one other thing out just in-- HIS HONOUR: --special circumstances, but if it rests there it would be double counting wouldn't it, to bring into account on the overall head sentence. I would be minded to impose an aggregate sentence I should indicate but-- SUTHERLAND: Yes, I would have thought that was an appropriate course, if I may say so. HIS HONOUR: Special circumstances I would have thought is the place where that would sit. SUTHERLAND: Yes. …" [Emphasis added.]

It is evident that the applicant's senior counsel considered that it was appropriate for the applicant's poor health to be taken into account as a special circumstance but not as a matter that would impact upon the head sentence. No submission was made to the judge that to do otherwise would not amount to double counting.
This Court has emphasised that appeals do not provide an occasion to revise or reformulate cases argued before a sentencing judge. Arguments that are raised on appeal that retract or contradict submissions made below will not be entertained unless it can be demonstrated that there has been a miscarriage of justice arising from the plea and sentence: Zreika v R [2012] NSWCCA 44 at [79]-[83].
The applicant's argument seeks to resile from a concession made by senior counsel in response to the judge's indication that his consideration of poor health would be confined to a variation of the non-parole period.
I do not think that, on the facts of this case, senior counsel's concession was inappropriate. Poor health rendering imprisonment more burdensome may establish special circumstances but does not mandate a lesser head sentence: see, for example, R v Sellen (1991) 57 A Crim R 313. Furthermore, this Court has warned against double counting for matters already taken into account in calculating the head sentence, when finding special circumstances: Fidow at [18]; Trindall v R [2013] NSWCCA 229 at [17]; Bell; Jelisavac at [73].
In Betts, the Court determined that the serious injuries suffered by the offender in that case might impact upon the period of his sentence whilst at liberty and the judge erred in limiting the significance of these injuries to the non-parole period.
In the present case, there was simply no evidence before the judge which established that the applicant's medical conditions will limit his ability to comply with terms that may be imposed as conditions of parole. In any event, it is reasonable to expect that his parole conditions will be crafted in such a way to take into account his health at the time he is to be released on conditional liberty.
I am not persuaded that the judge erred. Moreover, as the applicant's attempt to resile from a concession made to the sentencing judge has not been justified, I would refuse leave to appeal.
Accordingly, I propose the following order: Leave to appeal against sentence refused.
McCallum J: I agree with Price J.

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