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[2013] NSWCCA 207
Court of Criminal Appeal (NSW)
2013-08-06
Leeming JA, Hulme J, Button J
Original judgment source is linked above.
Judgment 1LEEMING JA: I agree with Button J. 2R A HULME J: I agree with Button J. 3BUTTON J: On 10 February 2012, his Honour Judge Knox SC sentenced Alexander Bejanov ("the applicant") in the District Court of New South Wales for a number of offences to do with the unlawful sale and possession of firearms and ammunition. Six offences were substantively before his Honour by way of a notice of committal, and seven were placed on a Form 1 pursuant to the Crimes (Sentencing Procedure) Act 1999 4The total head sentence imposed was imprisonment for 7 years with a total non-parole period of 4 years 6 months. 5The applicant seeks leave to appeal against the sentences imposed. Three grounds were originally notified; in light of the concession of the Crown that error had been established with regard to the first two grounds and this Court must resentence, counsel for the applicant accepted at the hearing that the submissions and evidence that underpinned the third ground should be taken into account on resentence, rather than as a discrete ground requiring determination.
Objective features 6These were very straightforward. On 2 February 2010, the applicant met with an undercover police officer in a shopping centre car park. There the applicant sold the officer two firearms. The first was a Marlin brand .44 calibre rifle with a telescopic sight. The second was a 12 gauge pump action shotgun. Associated ammunition was also sold. The total purchase price was $7,000 in cash. 7Between that date and 22 March 2010, there were conversations between the applicant and the operative in which the applicant said that he was searching for more firearms that he could sell. No further sales took place. 8On 12 May 2010, a search warrant was executed at the home of the applicant. There the police located a second 12 gauge pump action shotgun. They also located a .22 calibre rifle with a box magazine and telescopic sight. Also found were assorted ammunition, some air rifle pellets, and a can of capsicum spray. 9All firearms and ammunition were in working order and therefore lethal. The other items were free from defect. 10As I have said, the matter was dealt with in the District Court by way of a notice of committal and a single Form 1. I shall proceed to detail the substantive matters first. 11Sequence 1 was an offence of selling a prohibited firearm that related to the sale of the 12 gauge shotgun on 2 February 2010. Pursuant to s 51(2A) of the Firearms Act 1996, it carried a maximum penalty of imprisonment for 20 years. Pursuant to the Crimes (Sentencing Procedure) Act, it was subject to a standard non-parole period of 10 years. 12Sequence 9 was an offence of possessing a prohibited firearm without a permit. It related to the second pump action shotgun located on 12 May 2010. Pursuant to s 7(1) of the Firearms Act, it carried a maximum penalty of imprisonment for 14 years. It was also subject to a standard non-parole period of 3 years. 13Sequence 13 was an offence of possessing a prohibited weapon without a permit. It related to the capsicum spray located on 12 May 2010. Pursuant to s 7(1) of the Weapons Prohibition Act 1998, it carried a maximum penalty of imprisonment of 14 years. It was also subject to a standard non-parole period of 3 years. 14Sequence 14 was an offence of selling an unregistered prohibited firearm. It was another offence that related to the sale of the first 12 gauge shotgun on 2 February 2010. Pursuant to s 36(1) of the Firearms Act, it carried a maximum penalty of imprisonment for 10 years. 15Sequence 16 was an offence of possessing an unregistered prohibited firearm. It related to the possession of the .22 calibre rifle that was located on 12 May 2010. Pursuant to s 36(1) of the Firearms Act, it carried a maximum penalty of imprisonment for 10 years. 16The sixth and final charge that was substantively before his Honour was sequence 17. That was an offence of possessing an unauthorised prohibited weapon. It also related to the possession of the .22 calibre rifle on 12 May 2010. Pursuant to s 7(1) the Firearms Act, it carried a maximum penalty of imprisonment for 14 years. It was also subject to a standard non-parole period of 3 years. 17I turn to discuss the seven offences contained on the Form 1. The applicant asked that they be taken into account when he was sentenced with regard to sequence 1, that is the sale of the first 12 gauge shotgun on 2 February 2010. 18The first charge on the Form 1 was selling a firearm, pursuant to s 51(2) of the Firearms Act. It related to the sale of the .44 calibre rifle with telescopic sight to the undercover operative on 2 February 2010. When dealt with on indictment, such an offence carries a maximum penalty of imprisonment for 5 years. 19The second charge on the Form 1 related to the selling of the ammunition to the undercover operative on 2 February 2010. The charge was brought pursuant to s 65(1) of the Firearms Act. The offence is wholly summary, and is punishable by a fine. 20The third charge on the Form 1 was possession of ammunition without holding a licence or permit. It related to the ammunition located on 12 May 2010. It was brought pursuant to s 65(3) of the Firearms Act, and is also a wholly summary offence punishable by a fine. 21The fourth charge on the Form 1 related to the 12 gauge pump action shotgun located on 12 May 2010. It was a charge of not keeping a firearm safely, and was brought pursuant to s 39(1)(a) of the Firearms Act. It is a wholly summary offence, and has a maximum penalty of imprisonment for 2 years and a fine or both. 22The fifth charge on the Form 1 was founded on the selling of the Marlin brand .44 calibre rifle with telescopic sight on 2 February 2010. It was brought pursuant to s 36(1) of the Firearms Act. It has a maximum penalty when dealt with on indictment of imprisonment for 10 years. 23The sixth charge on the Form 1 related to the possession of the 12 gauge pump action shotgun on 12 May 2010. That charge of possessing an unregistered firearm was brought pursuant to s 36(1) of the Firearms Act. The offence when dealt with on indictment has a maximum penalty of imprisonment for 10 years. 24The seventh and final charge on the Form 1 was of not keeping a firearm safely. It related to the possession of the .22 calibre rifle located on 12 May 2010. It was brought pursuant to s 39(1)(a) of the Firearms Act. It is a wholly summary offence and carries a maximum penalty of imprisonment for 2 years and a fine or both. 25I interpolate to say that the assignment of charges to the notice of committal and the Form 1 was idiosyncratic and apt to confuse. It can be seen that the sale of the .44 rifle on 2 February 2010 did not appear on the notice of committal, but merely on the Form 1. Conversely, sequences 1 and 14 on the notice of committal (each of which related to the sale of the first shotgun on 2 February 2010) and sequences 16 and 17 (each of which related to the possession of the .22 rifle on 12 May 2010) possessed a very substantial degree of evidential overlap. That overlap, with regard to the latter two sequences, led his Honour into an error about which there is no dispute between the parties. 26In my opinion, it would have been preferable for the most serious count with regard to each of the four firearms (two sold on 2 February 2010, and two possessed on 12 May 2010) to have appeared on the substantive document. All of the other charges to do with firearms, and the charges to do with the capsicum spray and the ammunition, could have appeared on two or more Form 1 documents. The Form 1 documents should have been logically attached to the most relevant substantive offence. Some charges could perhaps have been dispensed with entirely.
Subjective aspects 27The applicant pleaded guilty in the Local Court, and received a discount for the utilitarian value of that plea of 25 per cent. Neither party impugns that discount in this Court. 28The applicant claimed that he had found all of the firearms on the beach, and that the ammunition and capsicum spray had been found by him at a construction site. Those preposterous exculpatory stories were rejected by his Honour. His Honour found that there had been no cooperation on the part of the applicant with regard to the true source of the weapons. 29The applicant had a single conviction on his criminal record. Importantly, it was for possessing an unauthorised firearm in the form of a pistol in March 2001. On the other hand, it was accepted in the proceedings on sentence that it was in truth a starting pistol, and the matter had been disposed of in the Local Court by way of a fine in the sum of $500. 30Aged 38 as at the date of sentence, the applicant is of Russian background. He has been involved in businesses to do with trucking and hire cars. His mother has not been in good health, and the applicant had been of assistance to her in that regard. 31By far the most emphasised subjective feature in the proceedings on sentence was the health of the applicant himself. The evidence was that he was suffering from chronic myeloid leukaemia, and that condition is chronic and life-threatening. There was a dispute between his treating doctor and doctors of Justice Health as to the sufficiency and competence of the treatment he was receiving for that condition whilst in custody bail refused. His treating doctor gave detailed evidence to the effect that, if his regime of drug treatment was not carefully implemented and monitored, the only alternative would be a bone marrow transplant, a potentially life-threatening procedure. 32In the remarks on sentence, his Honour found that the treatment that the applicant would receive in custody would "not be optimal", and could not replicate the standard of care that would be available to the applicant in the community. But his Honour rejected any suggestion that the medical condition of the applicant could, or should, lead to an alteration in the form of sentence. In other words, his Honour was clear that a substantial period of full-time imprisonment had to be imposed. Nor did his Honour make a finding of "significant hardship" accruing to the applicant in custody as a result of his illness. However, his Honour did remark that the medical condition of the applicant would be taken into account with regard to the length of the non-parole period, and the finding of special circumstances.
Structure of sentences imposed 33A diagram annexed to this judgment sets out the sentencing structure in a readily comprehensible form. 34With regard to sequence 1, a head sentence of imprisonment for 5 years with a non-parole period of 3 years 9 months to date from 15 December 2011 was imposed. The non-parole period expires on 14 September 2015. 35Although his Honour clearly stated that his Honour's intention was that the non-parole period for sequence 1 would be 66 per cent of the head sentence, it can be seen that it was, in fact, 75 per cent of the head sentence. 36With regard to sequence 9, a head sentence of 4 years 2 months with a non-parole period of 2 years 6 months to date from 15 June 2013 was imposed. That non-parole period expires on 14 December 2015. In other words, it extends the non-parole period of sequence 1 by 3 months. 37With regard to sequence 13, a head sentence of imprisonment for 3 years with a non-parole period of 2 years to date from 15 March 2014 was imposed. The non-parole period expires on 14 March 2016. It extends the non-parole period of sequence 9 by 3 months. 38With regard to sequence 14, a fixed term of imprisonment for 2 years to date from 15 December 2011 and expire on 14 December 2013 was imposed. It can be seen that that fixed term is wholly concurrent with the non-parole period for sequence 1. 39With regard to sequence 16, a fixed term of imprisonment for 2 years to commence on 15 December 2011 and expire on 14 December 2013 was imposed. Again, it can be seen that that fixed term is wholly concurrent with the non-parole period of sequence 1, and also completely concurrent with the fixed term for sequence 14. 40With regard to sequence 17, his Honour imposed a head sentence of imprisonment for 5 years with a non-parole period of 2 years 6 months. That sentence commenced on 15 December 2013. Again, that non-parole period, which expires on 14 June 2016, extends the total non-parole period by 3 months. 41It is immediately noteworthy that that sentence is therefore completely cumulative upon the fixed term of imprisonment for 2 years imposed for sequence 16 with regard to the possession of the very same firearm, namely the .22 calibre rifle. 42As I have indicated, a total sentence of imprisonment for 7 years with a non-parole period of 4 years 6 months was imposed. Clearly, special circumstances were found that permitted a variation in the statutory ratio between the total head sentence and the total non-parole period to 64 per cent. If that is not been the case, the total non-parole period would have been 5 years 3 months.
Ground one "1.(a) The discount provided to the applicant for the utilitarian benefit of his plea of guilty on sequence 1 was erroneously calculated. (b) The consequential imposition of a non-parole period for sequence 1, based on 66% of the head sentence, was erroneously calculated. (c) The commencement dates for the sentences imposed on sequences 9, 13 and 17 were all consequently erroneous." 43In short, the applicant submitted that a mathematical error had been made by his Honour in calculating the head sentence imposed with regard to sequence 1, after reduction by way of the application of the 25 per cent discount to the starting point head sentence of imprisonment for 6 years 3 months. The Crown conceded that such an error has occurred. 44In light of the concession of the Crown, I consider that this part of ground one should be accepted. It is noteworthy that, towards the end of the remarks on sentence, his Honour actually adjourned so that the parties could assist the court by checking all figures with regard to the sentences that his Honour intended to impose. Unfortunately, that assistance was not forthcoming. 45The second part of ground one is founded on the proposition that the non-parole period should be commensurately reduced, not only to reflect the reduction in the head sentence, but also to give effect to the stated intention of his Honour that the non-parole period be no more than 66 per cent of the head sentence. Again, in light of the concurring position of the Crown with regard to both of those propositions, I consider that those submissions should be accepted. 46If the error had not occurred, applying a 25 per cent discount to the starting point of his Honour of 6 years 3 months (75 months) would have resulted in a head sentence of 4 years 8 months, not 5 years. Maintaining the ratio to which his Honour originally referred, namely 66 per cent, the resulting non-parole period would be 3 years and 1 month. 47The final part of ground one simply submits that the non-parole periods of sequences 9, 13 and 17 should each continue to extend the non-parole period of sequence 1 by a cumulative increment of 3 months after the reduction of that non-parole period, as his Honour intended. Again, the Crown did not gainsay that proposition. I consider that that proposition is made out as well. 48Clearly, s 6(3) of the Criminal Appeal Act 1912 is engaged, in light of material error having been established. I will come to discuss the resentencing exercise later, including the taking into account of evidence that was placed before this Court but was not available at first instance. 49But at the least I consider that sequence 1 should be reduced in the way for which the applicant contends, both with regard to the head sentence and non-parole period, and that the commencement dates of sequences 9, 13 and 17, should be the subject of ancillary adjustment.
Ground two "2. His Honour erred regarding the sentences imposed for offences 16 and 17 in that: (a) The sentence for sequence 17 was entirely accumulated on the sentence for sequence 16. (b) The sentence for sequence 17 is manifestly excessive." 50The first submission of the applicant can be stated shortly. As I have said, sequence 16 and sequence 17 pertained to one and the same firearm. Sequence 16 was founded on the fact that the .22 rifle located on 12 May 2010 was unregistered and prohibited. Sequence 17 focused upon the fact that it was unauthorised and prohibited. And yet the sentence for sequence 17 is wholly cumulative upon the sentence for sequence 16. Again, the Crown accepted that the ground has merit. 51Whilst it is true that a very wide discretion is conferred upon judges at first instance with regard to questions of accumulation and concurrence (see R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, and most recently discussed in R v Nguyen [2013] NSWCCA 195), I consider that this ground should be upheld as well. There should have been, in my respectful opinion, a substantial degree of concurrency between the sentences for sequence 16 and sequence 17. As I have said, the assignment of offences between the notice of committal and the Form 1 did little to make the position clear to his Honour. 52The applicant also submitted that the sentence for sequence 17 is manifestly excessive. A comparison was drawn between the sentence imposed for that offence and the sentence imposed for sequence 1. 53It is one thing to say that there should have been substantial concurrence between the sentence for sequence 16 and the sentence for sequence 17. It is another thing to say that a head sentence of 5 years, in the context of a maximum penalty of imprisonment for 14 years, is manifestly excessive, even taking into account the fact that a 25 per cent discount had been applied. And it is not easy to accept that a non-parole period of 2 years 6 months is manifestly excessive, in light of the applicability of a standard non-parole period of imprisonment 3 years. 54I regard the head sentence imposed for sequence 17 as stern. However I am not persuaded that either the head sentence or the non-parole period is manifestly excessive.
Section 6(3) of the Criminal Appeal Act 1912 55Material errors having been established, it is incumbent upon this Court to resentence if satisfied that a lesser sentence or sentences is warranted in law. 56A number of affidavits were received on resentence. They show that the treating doctor of the applicant continues to consider that his treatment in custody is markedly deficient. To the contrary, the doctors of Justice Health state that they are doing all they can in light of the realities of incarceration, and that they do not accept that the treatment and management of the applicant is incompetent or inappropriate. The applicant has deposed in an affidavit to the difficulties that he has experienced in custody as a result of his illness, and his general efforts to proceed with his rehabilitation. 57I do not consider that this Court is in a position definitively to resolve the controversy about the details of the treatment of the applicant. But as a general matter, the fact is that it will often be the case that medical treatment of prisoners in custody is unable to replicate that which is available in the community. For example, a chronically ill offender who is accustomed to staying in frequent contact with his or her treating doctor by way of mobile phone will be unable to do so when incarcerated. Treatment of medical conditions in custody must simply be as good as the exigencies and realities of the situation permit. 58Turning to this particular case, I accept that the health of the applicant is compromised to some degree by his being in custody. I also accept that his time in custody has been and will be more worrisome and onerous as a result of his illness. It is well established that those factors can be taken into account in sentencing: see R v Badanjak [2004] NSWCCA 395 and R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152. 59I am satisfied that a lesser total head sentence and total non-parole period than that imposed by his Honour is warranted in law. 60Having said that, a substantial period of imprisonment was and is inevitable for these offences. As his Honour said in the remarks on sentence, to seek to disseminate lethal weapons into the community for profit is a profoundly antisocial offence: see Troung v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [66], and the decisions of this Court referred to at [64]. 61Counsel for the applicant submitted that an appropriate total head sentence would be imprisonment for 6 years with a total non-parole period in the order of 3 years. 62The Crown in this Court was reluctant to "get into numbers", though it was submitted that the mathematically corrected sentence with regard to sequence 1 was "about right". 63At one stage I thought that it would be easier to impose an aggregate sentence, pursuant to s 53A of the Crimes (Sentencing Procedure) Act. The transitional provisions permit that course, because the pleas of guilty were entered in the Local Court on 21 April 2011, thereby post-dating the commencement of this section on 14 March 2011: see Sch 2 [62] of the Crimes (Sentencing Procedure) Act. On reflection, however, I consider that the better and more convenient course is simply to make the adjustments to the sentencing structure created by his Honour that I have discussed, and to do so with a result that I consider appropriate on all of the evidence, including that tendered on resentence. 64The orders that I propose will result in a total head sentence of imprisonment for 6 years with a total non-parole period of 3 years 7 months. The ratio will be slightly reduced from 64 per cent (the ratio created by his Honour) to just below 60 per cent. I find that special circumstances justify the variation of the statutory ratio, not the least of them being the illness of the applicant. 65To be clear, the total sentence I propose should be regarded as carrying a marked degree of leniency with it, arising not only from the need to correct the errors that occurred at first instance, but also from the need to reflect the serious medical condition of the applicant.
Orders 66I propose the following orders: (1)Leave to appeal granted. (2)Appeal allowed. (3)Sentences with regard to sequences 1, 9, 13, and 17 quashed. (4)With regard to sequence 1, and taking the matters on the Form 1 into account, the applicant is sentenced to imprisonment comprising a non-parole period of 3 years 1 month and a balance of the term of the sentence of 1 year 7 months. The sentence is to date from 15 December 2011. The non-parole period expires on 14 January 2015 and the total term expires on 14 August 2016. (5) With regard to sequence 9, the applicant is sentenced to imprisonment comprising a non-parole period of 2 years 6 months with a balance of the term of the sentence of 1 year 8 months. The sentence is to date from 15 October 2012. The non-parole period expires on 14 April 2015 and the balance of the term expires on 14 December 2016. (6)With regard to sequence 13, the applicant is sentenced to imprisonment comprising a non-parole period of 2 years with a balance of term of the sentence of 1 year. The sentence is to date from 15 July 2013. The non-parole period expires on 14 July 2015 and the balance of the term expires on 14 July 2016. (7)With regard to sequence 17, the applicant is sentenced to imprisonment comprising a non-parole period of 2 years 6 months and a balance of term of the sentence of 2 years 6 months. The sentence is to date from 15 December 2012. The non-parole period expires on 14 June 2015 and the balance of the term expires on 14 December 2017. (8)The first date upon which the applicant will be eligible for parole is 14 July 2015.
Amendments 23 October 2013 - Annexed diagram amended: start date for sequence 9 changed from 15/6/12 to 13/6/13. Amended paragraphs: 33 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2013
Bejanov
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