Barta v Regina

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25(2) Crimes (Sentencing Procedure) Act 1999 - ss 23(3), 44

Liu v R [2005] NSWCCA 450 Attorney General's Application (No. 1 of 2002) (2002) 56 NSWLR 146 R v GDR (1994) 35 NSWLR 376 Markarian v The Queen (2005) 79 ALJR 1048 R v Markarian [2005] NSWCCA 264 CASES CITED: R v Caccamo [2005] NSWCCA 257 R v Araya [2005] NSWCCA 28 R v Singh [2001] NSWCCA 424 R v Diamond (NSWCCA, unreported, 19 February 1993) R v LLM [2005] NSWCCA 302 R v Hodges (1997) 95 A Crim R 85

COUNSEL: G. Rowling - Crown P. Byrne SC - Applicant

SOLICITORS: S. Kavanagh - Crown M. Croke - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/1847

McCLELLAN CJ AT CL HOWIE J LATHAM J

Stefan BARTA v Regina Judgment 1 McCLELLAN CJ at CL: In his judgment, which I have had the privilege of reading in draft, Howie J confirms the principle that this Court when considering matters of parity between co-offenders will not reduce a sentence which is otherwise adequate by reason of the sentence imposed upon a co-offender that is inadequate. 2 In Liu v R [2005] NSWCCA 450 I said: "Although the High Court has stressed the need for consistency in punishment, particularly of co-offenders, this does not have the consequence that if in all the circumstances a co-offender should have received a greater sentence than the other offender, the latter may complain of a justifiable grievance requiring intervention by this Court. If the error has been made when sentencing another offender the co-offender's grievance may not require the intervention of this Court." 3 The fundamental principle is that this Court will only intervene when an applicant can demonstrate a justifiable sense of grievance. This is unlikely to be the case when the only error which has been made is the imposition of an inadequate sentence on a co-offender. 4 I agree with Howie J. 5 HOWIE J: The applicant, Stefan Barta, pleaded guilty in the Local Court to two offences involving the supply of heroin. The first was an offence of supplying not less than a commercial quantity of the drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the Act). The maximum penalty for this offence is relevantly imprisonment for 20 years. The second offence was supplying that drug on an ongoing basis contrary to s 25A of the Act for which offence there is also prescribed a maximum penalty of imprisonment for 20 years. The applicant was committed for sentence to the District Court. 6 He adhered to his pleas of guilty in that court and was sentenced for those offences on 25 July 2002 by Judge Hosking SC (the Judge) as follows:

(a) for the offence under s 25(2), and taking into account a number of matters on a Form 1, imprisonment for six years and eight months from 1 July 2003 with a non-parole period of five years to expire on 30 June 2008;

(b) for the offence under s 25A to imprisonment for five years from 1 October 2001 with a non-parole period of three years and nine months to expire on 30 June 2005. This results in an overall sentence of imprisonment for eight years and five months to date from 1 October 2001 with an overall minimum period to be served of six years and nine months to expire on 30 June 2008 the date upon which the applicant is eligible to be released to parole. 7 The applicant seeks an extension of time in which to make an application for leave to appeal against that sentence. There was no objection by the Crown to time being extended. The applicant relies upon three grounds of appeal as follows:

I The learned sentencing judge erred in adding a discrete period of imprisonment of 18 months to the sentence imposed on the s 25(2) charge in order to take into account the matters on the Form 1;

2. The learned sentence judge erred in structuring the head sentences and non-parole periods specified so that in the result the applicant is required to serve more than 80% of his overall sentence in custody before being eligible for release to parole;

3. The sentence imposed on the applicant is excessive having regard to the sentences imposed on two of his co-offenders Anthony Markarian (see R v Markarian [2005] NSWCCA 264) and Vincent Caccamo ( see R v Caccamo [2005] NSWCCA 257). 8 The offence of supplying not less than a commercial quantity of heroin (the s 25(2) offence) related to a period between 9 April 2000 and 13 June 2000 and involved 394 grams of heroin. The commercial quantity for that drug as prescribed by the Act is 250 grams. The offence of on-going supply (the s 25A offence) related to a period between 26 September 2001 and 1 October 2001. The offences on the Form 1 were: (i) supply 119 grams of heroin between 4 and 21 October 2000; (ii) receiving a stolen computer between 26 and 27 September 2001; (iii) conducting premises for the supply of prohibited drugs on 1 October 2001; (iv) goods in custody of $1,300 on 1 October 2001; (v) goods in custody of $20,600 on 1 October 2001. 9 There was an agreed statement of facts that the Judge set out in full in his remarks on sentence. They can be summarised for present purposes. As a result of the lawful interception of the telephone service of Vincent Caccamo, a drug supplier, police learned that the applicant was one of the sources of the drugs he supplied. The police conducted an investigation of the applicant using telephone intercepts, listening devices, surveillance, bank records and an induced statement by Caccamo. They ascertained that over a period of about nine weeks the applicant supplied Caccamo with 349 grams of heroin said to have a street value of $197,000. On an almost daily basis, and sometimes more frequently, Caccamo was driven to the applicant's premises in Croydon Park where he purchased seven grams of heroin from the applicant at a cost of $2,000. These facts give rise to the s 25(2) offence. 10 Police reinstated telephone intercepts on the applicant's service on 25 September 2001. These intercepts revealed that from 25 September 2001 until his arrest on 1 October 2001 the applicant was actively engaged in the supply of heroin to a number of persons including Caccamo. There were identified 46 separate occasions during this period when the applicant supplied heroin totalling about 213 grams. The supplies were often in the amount of seven grams but could be from 1 to 28 grams. These facts gave rise to the s 25A offence. 11 On 1 October police arrested Caccamo after he left the applicant's premises with seven grams of heroin. The applicant was arrested shortly after and his premises were searched revealing a number of luxury items including "designer clothes". In the kitchen police located packing tape, plastic bags, electronic scales and a heat-sealing machine. The applicant owned two motor vehicles and the police asserted he had had no other form of income. The applicant was linked with premises in Hampton Street Croydon Park in which police found two drug presses, 1.5 grams of heroin, and electronic scales. There appeared to be no person living in those premises. 12 The applicant was aged 37 at the date of sentencing. In 1993 he was sentenced to 12 months imprisonment for the offence of supply a prohibited drug. He was placed on a bond in 1995 for goods in custody. The applicant was born and raised in Romania by his grandparents after his parents separated when the applicant was aged 2 years. He attempted to leave Romania in 1988 but was arrested and spent 14 months in custody. He married after his release and came with his wife to Australia in 1990 after a period spent in refugee camps in Yugoslavia. He and his wife were divorced in 1992. The applicant remarried in 1998 and has two children from that union. He told the officer preparing the pre-sentence report that from 1995 until his arrest he spent a large amount of time in Romania and his income came through the sale of motor vehicles. 13 The applicant claimed that he commenced using cocaine in 1996 and from February 2000 until his arrest was using up to 2 grams a day. The applicant claimed that he sold drugs to support his cocaine addiction. There was a report in evidence from a drug counsellor who had interviewed the applicant in custody. The applicant told the counsellor that he used cocaine to overcome depression after his first marriage ended. He claimed to be drug free while in custody. The counsellor considered that the applicant was attempting to change his past behaviour. 14 The first ground of appeal relates to what is said to be an error by the Judge in specifying the amount by which he was increasing the otherwise appropriate sentence for the s 25(2) offence to take into account the Form 1 matters. The Judge stated that, had it not been for the plea and assistance, he would have imposed a sentence of nine years imprisonment for the s 25(2) offence and "would have added to that an additional eighteen months for the various Form 1 matters". The Judge then discounted that sentence by 35 per cent and derived a sentence of six years and eight months. 15 In support of this ground of appeal reliance is placed upon the following passage from the judgment of the Chief Justice in Attorney General's Application (No 1 of 2002) (2002) 56 NSWLR 146:

[44] The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].)

[45] The suggestion in the Attorney's proposed guideline that the increase in penalty should normally be specified may have been appropriate if the Attorney's basic approach were to be adopted, ie that in some senses sentences were being imposed for the Form 1 offences. Once that approach is rejected, specification of quantum is inappropriate. 16 There was no reason in the present case for the Judge to quantify the effect of the Form 1 matters on the sentence for the s 25(2) offence and his Honour did not indicate why he took that exceptional course. Of course, a court must make some decision as to the additional penalty that is to be imposed for the offence for which sentence is being passed by reason of the effect of the matters on the Form 1. Clearly the court must translate that effect into an increase in the sentence by an identifiable amount. The difficulty with stating that amount, as the Judge did in the present case, is that it at least gives the appearance that the offender is being sentenced to a discrete period of imprisonment for the matters appearing on the Form 1 yet the offender has not been convicted of those offences. That is why such a course was considered by the Chief Justice to be inappropriate. 17 But it does not follow that the Judge's discretion necessarily miscarried in determining that an appropriate starting sentence for the s 25(2) offence and taking into account the matters on the Form 1 was ten years six months before applying the discount for the plea and assistance. The 18 months, as representing the effect of the Form 1 matters, does not itself appear to be excessive having regard to the seriousness of the supply offence being taken into account. That offence arose from daily supplies of heroin by the applicant to Caccamo over a period of about three weeks and involved 119 grams of the drug. It will be recalled that the s 25(2) offence involved about 394 grams, so the Form 1 matter would necessarily have had a significant impact upon the sentence imposed for that offence in order to reflect the increased need for retribution. 18 Ultimately the question for resolution is whether the starting point chosen by the Judge for the s 25(2) offence was excessive bearing in mind the Form 1 matters and in particular the supply offence. I do not believe it was. The Judge found that the applicant was in the business of supplying drugs substantially as a means of making a living. His Honour could not make an assessment of how profitable that business was but accepted it was his sole source of income. The applicant was clearly selling as a wholesaler at least so far as Caccamo was concerned. In my opinion a starting sentence of ten years and six months as against a head sentence of 20 years was well within range notwithstanding that the amount of heroin supplied was at the lower end of the commercial quantity. At the end of the day it seems to me to be impossible to find that a head sentence of six years and eight months and a non-parole period of five years was manifestly excessive. Any lesser sentence would have infringed s 23(3) of the Crimes (Sentencing Procedure) Act 1999 as being unreasonably disproportionate to the nature and circumstances of the offence. 19 In my opinion the first ground of appeal fails. 20 The next ground of appeal concerns the relationship between the overall head sentence and the overall minimum period of custody that the applicant has to serve before being eligible for release to parole. The overall non-parole period is 80 per cent of the overall term of imprisonment whereas the statutory proportion under s 44 of the Crimes (Sentencing Procedure) Act is 75 per cent. Of course there is no prohibition on the proportion of the non-parole period to the term of the sentence exceeding 75 per cent and a judge is not required to give reasons for exceeding the statutory relationship. There is nothing in the section that constrains the discretion of a sentencing judge in relation to setting a non-parole period unless the ratio is to fall below 75 per cent in which case the judge must find special circumstances justifying that result: R v GDR (1994) 35 NSWLR 376, a case in which the non-parole period exceeded the statutory proportion under legislation then operating. 21 However, it is submitted that this was not an intended result and arose because of the partial accumulation between the sentences for the two offences and, what is said to be, the Judge's failure to find special circumstances in order to retain the statutory relationship. The relevant part of the Judge's sentencing remarks are as follows (my emphasis):

It was urged on behalf of the offender that his alleged addiction, or former addiction to cocaine, should ground a finding of special circumstances in addition to other reasons for a finding of special circumstances. I do not accept that submission. Even if the offender was previously addicted to cocaine, it is clear from [the counsellor's] report he has been able to keep of[f] drugs since being in gaol. He has been in gaol now since 1 October 2001. He will, in any event, have a lengthy period at large upon his release on parole so that any residual inclination he has towards beginning to take drugs again at that time can be addressed during that period. I accept that in some cases it is appropriate to make a finding of special circumstances where two or more offences are imposed to be served concurrently. However the sentences that I am going to impose have been structured so that the minimum, appropriate period for accumulative sentences, or overlapping of sentences, will be served and it is not necessary for me to address that problem by making a finding of special circumstances. I do not think that any lesser period of non parole is appropriate for these offences than the ones I am going to specify. 22 With great respect, the passage underlined is not a model of clarity of expression and there are obvious mistakes or transcription errors. The word "offences" in the first underline sentence should be "sentences" and the word "concurrently" at the end of that sentence should be read as "consecutively" otherwise the sentence does not make any sense. There is also a disconformity between the use of the singular "lesser period of non parole" and the use of the plural in the expression "the ones" in the last sentence of that passage. But it is clear that the Judge was aware that, when making sentences cumulative or partly cumulative, it might be necessary to find special circumstances in order to ensure that the statutory proportion between the overall term and the overall non-parole period is preserved. That was the whole point of the first underlined sentence. I take his Honour to be indicating in the second and third underlined sentences that in the present case he did not intend to take that course because he believed that the resulting overall non-parole period was the least minimum period that the applicant should serve for the purpose of reflecting the objective seriousness of the offences and the need for general deterrence. 23 Contrary to the argument of Senior Counsel for the applicant, it seems to me that the Judge was well aware of what he was doing and the outcome of the orders he was making. The fact that the overall non-parole period exceeds the statutory relationship is not a basis for this Court overturning what was a discretionary decision by the Judge on the facts and circumstances of this particular case unless it clearly was not open to the judge to come to that decision. In the present case, in light of the seriousness of the offending, the subjective matters of the applicant were not of such significance that I would conclude that the Judge erred by failing to impose a lesser period of custody to be served before the applicant can be eligible to be released to parole. 24 In my opinion the second ground of appeal fails. 25 The third ground of appeal in effect asserts that the applicant has a justifiable sense of grievance arising from sentences imposed upon two persons who are described in the submissions of the applicant as "co-offenders". The applicant relies upon the sentences imposed upon Anthony Markarian and Caccamo. 26 Markarian was charged with knowingly being concerned in the supply of a commercial quantity of heroin. The amount was 415 grams. He also asked the sentencing judge, who was Hosking DCJ, to take into account a number of matters on a Form 1. He was sentenced to imprisonment for two years and six months with a non-parole period of fifteen months. The Crown appealed against that sentence and this Court upheld the appeal and sentenced Markarian to imprisonment for eight years with a non-parole period of four years and six months. The High Court, however, found that this Court had erred in the manner in which it approached the resolution of the Crown appeal, set aside the sentence and remitted the matter to this Court: Markarian v The Queen (2005) 79 ALJR 1048. On 3 August 2005 this Court, in the exercise of its discretion, dismissed the Crown appeal. Brownie AJA, who gave the principal judgment, considered that the sentence was manifestly inadequate: R v Markarian [2005] NSWCCA 264. 27 The facts upon which Markarian was sentenced and his subjective factors were summarised in the joint judgment of the High Court as follows:

[6] The facts constituting the principal offence consisted of the appellant's acting over a period of 5 months as a driver for Vincent Caccamo, a dealer in heroin. The appellant, who was himself a heroin addict, was paid in heroin for his services. The material before the sentencing court emphasized the different degree of criminality of the appellant from Caccamo's. Caccamo had previously been sentenced to 8 years imprisonment with a non-parole period of 5 years for a number of offences of supply in the course of an illicit business of handling and selling drugs. The relative brevity in all of the circumstances of his sentence is explained by the significant value that the judge who sentenced him attached to his cooperation with the police. Another of Caccamo's drivers, Chung, was sentenced to periodic detention of 3 years with a 2 years period of non-parole. Chung did not have a criminal record. He had fewer other matters to be taken into account, and he had driven less frequently for Caccamo than had the appellant.

[7] The appellant gave evidence at the sentence hearing. This, in summary, was that he was born in December 1963 and started to use heroin soon after his mother's death in August 1996. Caccamo became his source for the drug. In April 1998, he was sent to prison. By the time of his release in October 1999 he had taken himself off both heroin and methadone. He however resumed contact with Caccamo in about July 2000. He regarded himself as indebted to Caccamo for the latter's kindness to his father when he was in prison. At this point the appellant resumed drug taking. Caccamo, who did not have a valid driver's licence, used the appellant as his driver in return for drugs. Before he was charged the appellant had dissipated, largely on illegal drugs, an inheritance from his father of $200,000. He claimed that his own criminal activities had been done out of desperation and in despair at the loss of his parents.

[8] The appellant has a criminal history. He was placed on recognisance of 3 years for cultivating a prohibited plant and fined for possessing a prohibited imported drug in 1991. In May 1998 he was sentenced to imprisonment for supplying a prohibited drug. For that offence he spent 18 months in prison and an additional 18 months on parole. He was on parole at the time of the commission of the principal offence and one of the further offences.

[9] The sentencing judge had before him an optimistic pre-sentence report indicating that the appellant had been in regular employment until about 1990. He had apparently made genuine progress towards drug rehabilitation by the time of sentence. 28 Caccamo was sentenced for three offences of supplying drugs. The first was an offence of supplying between 9 April 2000 and 6 September 2000 not less than a large commercial quantity of heroin, being 1.22 kilograms. In respect of that offence three matters were taken into account. The second offence was 1.28 kilograms of cannabis. The third offence was supplying between 1 January 1999 and 6 May 1999 not less than a commercial quantity of heroin, being 966 grams. After receiving a discount of 46.6 per cent for his plea and assistance to the authorities, Caccamo was sentenced to eight years imprisonment on the first offence with a non-parole period of five years. The sentences for the other offences were made concurrent. An appeal by Caccamo against that sentence was dismissed by this Court: R v Caccamo [2005] NSWCCA 257. 29 The complaint is that the applicant feels aggrieved because his sentence is longer than those imposed upon both Markarian and Caccamo yet his criminality was less than Caccamo and, although greater than Markarian, was not such that could justify the difference in their sentences. 30 There may be some question as to whether Markarian or Caccamo were co-offenders with the applicant. There is no common offence between them. In R v Araya [2005] NSWCCA 28 this Court considered that the principle of parity did not apply where the two offenders were not co-offenders in respect of any of the offences for which they were to be sentenced even though "there was some association between the two offenders and some overlap in their activities". 31 In Araya Johnson J, who gave the leading judgment, quoted with approval remarks I made in R v Singh [2001] NSWCCA 424. In those remarks I stated that the applicant "was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative." I must confess to now having doubts as to whether the supplier and purchaser of drugs should be considered as co-offenders. However, the Crown conceded that, although the applicant, Markarian and Caccamo were not technically co-offenders, the Court should have regard to the sentences imposed upon the latter two offenders as a matter of fairness to the applicant. I am prepared to act on that basis although I have some doubts about its appropriateness. However, I should note that Caccamo was not the only purchaser who obtained drugs from the applicant and there were at least ten other purchasers involved in the s 25A offence. 32 It is clear that the criminality of Markarian was less than that of the applicant, and Mr Byrne conceded as much. Further the subjective features were very different from those of the applicant, even if some of them might have been to Markarian's disadvantage. This Court has twice considered that Markarian's sentence was manifestly inadequate. This Court is not required to exercise its discretion to reduce an otherwise appropriate sentence by reason of the sentence imposed upon a co-offender that is inadequate; R v Diamond (NSWCCA, unreported, 19 February 1993; R v LLM [2005] NSWCCA 302. The fact that Markarian "escaped" the imposition of an appropriate sentence by reason of an error of this Court initially and the exercise of discretion ultimately does not in my opinion give rise to a justifiable sense of grievance that this Court should address. If R v Hodges (1997) 95 A Crim R 85 suggests otherwise, I would not be prepared to follow it, but the facts of that case are clearly distinguishable from this. 33 In so far as Caccamo is concerned, the applicant was clearly at a higher point in the drug hierarchy than was Caccamo. Although the Judge seemed to have been reluctant to embrace a submission by the Crown to that effect, with respect I simply do not understand his Honour's line of reasoning for not making that finding. The Judge seemed to think that it was a relevant consideration that Caccamo might also have obtained heroin from persons other than the applicant. But Mr Byrne SC accepted that logic and reason must lead to the conclusion that the applicant was nearer the source of the drug because he could sell it to Caccamo and others at a profit. Mr Byrne also accepted that the applicant could be considered as a wholesaler whereas Caccamo was a retailer. Notwithstanding that the amount supplied by Caccamo was greater than that supplied by the applicant, the applicant's criminality could be considered greater because of his position in the hierarchy. There was also a greater degree of assistance given by Caccamo that justified a greater reduction in the sentence. The Judge in the present matter seemed to feel that he might have been overly generous to the applicant in the discount he gave. 34 I am not persuaded that this Court should exercise its discretion to intervene in order to ease some sense of grievance or unfairness that the applicant might feel about his sentence when compared with that of Caccamo. Therefore the third ground of appeal fails. 35 I propose that the extension of time in which to seek leave to appeal be granted, that leave to appeal also be granted, but that the appeal be dismissed. 36 LATHAM J: I agree with Howie J. **********

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