Grounds 3, 4 and 5 - Challenges to Accumulation and Totality
48It is appropriate to consider these grounds of appeal together.
Submissions
49Mr Smith submits that the degree of accumulation of sentences in this case is excessive so that the total effective sentence imposed is excessive.
50Whilst accepting that there is no rule or principle that requires sentences for offences committed on the same day, or in the course of the same criminal undertaking, to be served concurrently ( Melbom v R [2011] NSWCCA 22 at [74]), and that the fact that drugs were located in the same place and at the same time, did not necessarily lead to concurrent sentences ( R v XX [2009] NSWCCA 115; 195 A Crim R 38), Mr Smith submits that a greater degree of concurrence was appropriate in this case.
51Counsel for the Applicant submits that the sentencing Judge did not identify in what sense the first and second counts were said to be separate, so that concurrent sentences were appropriate as between those counts.
52Mr Smith concedes that some degree of accumulation was required as between the second and third counts, but submits that the degree of accumulation is excessive in this case.
53He submits that the overall degree of accumulation, which amounted to 25% of the overall non-parole period, was excessive in circumstances where the offences were very closely connected.
54Mr Smith submits that the Applicant's subjective case was not appropriately reflected in the overall sentence: Mulato v R at [40]. He pointed to the 10% discount for the pleas of guilty and other subjective features, including the Applicant's family history in Iraq and Australia. He pointed as well to the sentencing Judge's assessment that the Applicant's prospects of rehabilitation were "reasonable to good" .
55Mr Smith submitted that the Form 1 offences in this case did not justify a significant increase in the otherwise applicable penalty, and that it was not automatic that the sentence for the first count, to which the Form 1 offences attached, ought be increased: Mulato v R at [68].
56He submits that, with one exception, the Form 1 offences were relatively minor offences. He submitted that:
(a) small quantities of drugs were involved in the possession offences;
(b) the Taser in the Applicant's possession was not functioning;
(c) the instructions relating to the manufacture of a prohibited drug were not indicative of any intent to manufacture on the Applicant's part;
(d) possession of the ammunition was closely related to the third count;
(e) the offence of knowingly dealing with the proceeds of crime involved a sum of money which was forfeited as part of the sentencing proceedings.
57Mr Smith submitted that the overall sentence was manifestly excessive and that lesser sentences were warranted in law.
58The Crown submitted that questions of concurrence or accumulation are discretionary.
59The Crown submitted that his Honour applied the principles with respect to accumulation, concurrency and totality and that the levels of accumulation were open to the sentencing Judge in this case.
60The Crown submitted that the sentences were not manifestly excessive when taken individually, or when viewed as a total effective sentence, so that the challenge to the sentences in this case ought be rejected.
Decision
61The principles to be applied with respect to concurrency, accumulation and totality were stated by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]:
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
62I do not accept the Applicant's submission that, in some way, concurrent sentences were appropriate for the drug supply offences constituting the first and second counts. Although the drugs in question happened to be in the Applicant's vehicle on the same day and at the same time, different drugs were involved, being a commercial quantity of ecstasy (first count) and a significant quantity of methylamphetamine (second count). The offences were separate because the law of this State identifies these crimes as separate offences.
63There is no expectation that a sentencing Judge will treat offences of this type as requiring concurrent sentences because the Applicant committed offences, with respect to two different drugs, at the same time. Of course, there is no rule either that accumulation should always occur in such a case. What is required is the exercise of discretion in the circumstances of the case. That is what happened here. A measure of accumulation was both open and appropriate with respect to the first and second counts.
64The firearm offence contained in the third court required, in my view, a significant measure of accumulation and no error has been demonstrated in his Honour's approach in this respect.
65It is appropriate to refer to sentencing principles concerning offences under s.7(1) Firearms Act 1996 .
66In R v AZ [2011] NSWCCA 43; 205 A Crim R 222, the Court said at 234 [73]:
"The policy of the legislature evinced by the enactment of the offence in s.7(1) is to deter and punish possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14]. The courts must seek to implement the legislative policy to control the possession of firearms in the community 'by honest citizens and not simply to disarm the criminally minded': R v Tolley [2004] NSWCCA 165 at [53]. As it happens, the Respondent was amongst the ranks of 'the criminally minded' through his drug supply activities."
67Like the Respondent in R v AZ , the present Applicant was amongst the ranks of "the criminally minded" through his drug supply activities.
68It is pertinent to refer to other features of offences under s.7(1) Firearms Act 1996 which bear upon the objective seriousness of offences under that provision. In R v Thalari [2009] NSWCCA 170; 75 NSWLR 307, this Court said at 320-321 [88]-[89]:
"88 The fact that the pistol was loaded, and that the Appellant possessed other ammunition, bore upon the seriousness of his crimes: R v Mitchell [2002] NSWCCA 270 at [14]; R v Amurao [2005] NSWCCA 32 at [69]; Yang v R [2007] NSWCCA 37 at [18]. The Appellant's claim that he possessed the loaded pistol for his own protection was not a matter of significant, if any, mitigation, since the policy of the legislature evinced by the enactment of the offence under 7(1), with a maximum penalty of 14 years' imprisonment, was to act as a deterrent, and to punish possession of a pistol per se: R v Krstic at [14]. The rule of law, and the authority of courts, depends upon the proposition that persons do not, by illegal means, take their protection into their own hands: R v AA [2006] NSWCCA 55 at [46].
89 The fact that the serial number of the pistol had been obliterated, although explicable by the criminal origin of the weapon, does not assist the Appellant, who possessed the firearm for criminal purposes: Yang v R at [18]. The fact that the Appellant possessed the pistol in a context where he was involved in the supply of drugs also bears on the objective seriousness of the pistol offence: Luu v R at [32]."
69The location of the firearm with ammunition, drugs and money in the Applicant's vehicle pointed to a link between the pistol and the other items. As the sentencing Judge found, the fact that the Applicant possessed the pistol, in a context where he was involved in the supply of drugs, bore on the objective seriousness of the s.7(1) offence: R v AZ at 234 [76].
70To my mind, the aspects of this case to which the sentencing Judge made reference all pointed to, and supported, a conclusion that the s.7(1) offence was "well within the upper range of objective seriousness for offences" under that section. Even though the second ground of appeal was abandoned, this finding remains important to the determination of the challenge to his Honour's approach to accumulation and totality.
71The sentence imposed upon the Applicant in this case was a non-parole period of four years with a balance of term of two years and nine months. This sentence was appropriate in the circumstances of the case.
72A further observation may be made concerning the Applicant's submissions in the District Court and before this Court. It was contended that his Honour had given inadequate weight to the evidence that the Applicant suffered from a borderline personality disorder that could reflect itself in poor impulse control and instability in mood. This argument is very much a two-edged sword with respect to the firearm offence. Possession of a loaded pistol by a person with poor impulse control and instability in mood gives rise to issues of public safety, the protection of the community and the need for a significant allowance for personal and general deterrence: R v Thalari at 321 [93]; s.3A(b), (c) Crimes (Sentencing Procedure) Act 1999 .
73The Applicant's possession of a loaded pistol required some separate and identifiable penalty for that crime. The sentence on the drug supply offences could not comprehend and reflect the criminality for the firearm offence. The offences involved discrete and independent criminal acts so that a significant measure of accumulation was appropriate for the s.7(1) offence: R v AZ at 235-236 [85].
74It should be kept in mind that the sentencing Judge ordered that the sentences for these offences would run concurrently with the balance of parole being served by the Applicant from 22 July 2008 to 8 April 2009, following revocation of his parole by the State Parole Authority. As his Honour explained (ROS11):
"Each offence calls for a substantive sentence. Whilst there is some interrelationship between the three offences, they are separate and require some accumulation. Because the breach of parole has been treated as an aggravating feature for each offence and the overall length of the sentence, the Court considered that these sentences should be served concurrently with the balance of parole."
This discretionary determination was open to the sentencing Judge and operated favourably to the Applicant: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at 149-150 [22]-[25].
75However, the fact that the Applicant had committed these offences whilst on parole for robbery in company and kidnapping was a significant factor to be taken into account on the question of accumulation of individual sentences as well. The Applicant was not entitled to have factors operating, by way of double counting, in a manner that was favourable to him on issues of accumulation, concurrency and totality.
76In sentencing the Applicant for the first count, it was necessary for the sentencing Judge to have regard to the seven further offences contained in the Form 1. As his Honour observed, these offences were to be taken into account "when considering deterrence and retribution" in passing sentence on the first count (ROS1).
77The sentence imposed for the first offence had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offences: Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42]-[43]; R v Thalari at 321 [90].
78The Form 1 matters involved a variety of crimes. Their seriousness cannot be downplayed so as to suggest that the quantum of sentence on the first count ought not to have been increased to reflect those crimes.
79The offence of knowingly dealing in the proceeds of crime involved a substantial sum of $50,060.85. The fact that this sum was forfeited to the State could not be taken into account as a mitigating factor on sentence: R v Kalache [2000] NSWCCA 2; 111 A Crim R 152 at 175-176 [77]; s.24B Crimes (Sentencing Procedure) Act 1999 .
80The offence of possession of a Taser-like stun device was not a minor example of an offence under s.7(1) Weapons Prohibition Act 1998 : cf R v Williams [2005] NSWCCA 355; 156 A Crim R 225 at 232-233 [37].
81The offence of possession of a document (which the Applicant had touched) containing instructions for the manufacture of ecstasy was an unusual one, which did not assist the Applicant in an overall assessment of his association with drugs.
82The sentencing Judge had regard to all relevant objective and subjective factors in passing sentence.
83I am not persuaded that a total effective sentence comprising a non-parole period of eight years and an effective head sentence of 14 years is manifestly excessive. A claim of manifest excess requires the Applicant to demonstrate that the sentences were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. Neither the individual sentences, nor their cumulative effect, were unreasonable or plainly unjust. To the contrary, the sentences were well within the proper exercise of sentencing discretion for serious drug supply and firearm offences of this type.
84I would reject the third, fourth and fifth grounds of appeal.