Frlanov v R

Court of Criminal Appeal (NSW)|2018-11-21|Before: Macfarlan JA, Rothman J, Hulme J, MacFarlan JA

Solicitors: Solicitor for Public Prosecutions File Number(s): 2017/195174 Decision under appeal Court or tribunal: District Court Date of Decision: 21 June 2018 Before: Williams SC DCJ File Number(s): 2017/195174

Judgment

MACFARLAN JA: I agree with R A Hulme J.
ROTHMAN J: I agree with R A Hulme J.
R A HULME J: Ilija Frlanov applies for leave to appeal in respect of an aggregate sentence imposed in the District Court on 21 June 2018 after he had pleaded guilty to two offences.
Count 1 on the indictment concerned the supply of a prohibited drug (10.4 grams of methylamphetamine), an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 15 years and/or a fine of 2000 penalty units.
Count 2 concerned the possession without a permit of a prohibited weapon (a taser), an offence contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) for which the maximum penalty is imprisonment for 14 years. In respect of the latter there is also prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 5 years.
His Honour Judge Williams SC imposed an aggregate sentence of imprisonment for 20 months with a non-parole period of 11 months. The sentence was specified to date from 21 February 2018 and so the applicant will be released on parole when the non-parole period expires on 20 January 2019.

The offences

According to a statement of agreed facts, the applicant was stopped for a random breath test at Bossley Park at about 7.45pm on 29 June 2017. The test was negative but the applicant's demeanour was suspicious. A search was conducted and police found in a pouch on the applicant's belt a hand-held taser which was in working order. Inside his jacket pocket they found a paper bag with several phone numbers written on it. Inside was a plastic bag containing 10.4 grams of methylamphetamine. Two mobile phones were seized. Text messages sent and received that day on one of the phones related to the supply of drugs. $680 in cash was found in the applicant's wallet.
During a subsequent interview the applicant told police that he had bought the taser that morning for $300 from a person he called "Shorty". He bought the methylamphetamine ("ice") that morning from a friend of Shorty for $650. He denied intending to supply the drug, claiming that it was for personal use. (By his plea of guilty, however, he acknowledged that he had at least some of the drug for the purpose of supply.)

Matters personal to the applicant

The applicant was born in Macedonia and came to Australia with his family in 1986 when he was aged 13. At some stage later in his teenage years he returned to his home country where he performed national military service for a year. It is said that he suffered post traumatic stress as a result. He had the support of his mother and brother as well as his partner of four years who was present during the sentence hearing.
The applicant gave evidence of using cannabis at about the age of 16 or 17 and progressing to "party drugs" and then to heroin. He was addicted to heroin for "close to 15 years". He gave a description of having been seriously wounded in a knife attack in 2010 which left him with restricted mobility in his left arm. He has not worked since that time. He said that he had relapsed in relation to heroin and ice before his arrest for the current matters.
The applicant has an extensive criminal history dating from 1991 when he was aged 18. It is dominated by dishonesty offences (mostly stealing and possessing suspected stolen goods) for some of which he has been imprisoned. The only drug offences were very minor matters in 1992 and the charges were dismissed without conviction. There are two matters involving violence: resisting arrest in 1996 and assault in 2004, for both of which the applicant was fined. There is one matter involving a prohibited weapon (possession of nunchaku on 21 March 2015) for which there was a sentence of imprisonment for 5 months which was suspended upon the applicant entering into a good behaviour bond.
The judge interrupted the applicant's evidence at one point to ask for confirmation that "the only drug offence recorded in 28 pages of criminal history is a possess prohibited drug for which you got a 556A in 1992"? The applicant agreed, but frankly volunteered that the "majority of my crime was related to the heroin habit".
The applicant's previous experiences with supervision by Community Corrections were described in a Pre-Sentence Report as "borderline" and his engagement with intervention was said to be "minimal and superficial". He had responded favourably when released on parole in 2013 by engaging with a psychologist and admitting himself into a residential rehabilitation facility. However, two weeks before his parole expired he discharged himself and failed to make contact with his supervising officer.
The Pre-Sentence Report also included that the applicant had expressed a "keen interest in working alongside Community Corrections in order to combat his persisting addiction and mental health issues. … [I]t is hoped his interest is sincere, considering his previous response to supervision". A consistent theme in the applicant's evidence was that he was determined to address his mental health and addiction issues. He claimed to have learned through courses that he needed to have strategies in place so that he would not return to drugs when life became difficult.
Dr Gerald Chew, psychiatrist, made diagnoses of Schizophrenia (with a differential diagnosis of Drug Induced Psychosis) and Substance Use Disorder. It was his opinion that these conditions may have contributed to the offending in that the applicant had relapsed in relation to his addiction to ice which triggered psychosis. As part of this he became paranoid that people were out to get him and this could explain the possession of the taser for self-protection.
A number of certificates were tendered in the sentence proceedings concerning courses the applicant had completed whilst on remand, one of which involved sessions concerned with drug addiction.
The applicant had been committed for sentence in respect of both offences but withdrew his plea in respect of the drug supply charge which was then set down for trial. When a related summary offence of goods in custody was withdrawn by the Crown the applicant re-entered a plea of guilty to the drug supply charge. Notwithstanding the dilution of the utilitarian value of the plea to that charge for tactical reasons, the judge discounted the sentences he would have otherwise imposed for both matters by 25 per cent.
The judge described the applicant as being "at the crossroads of his life". He accepted the applicant's evidence that "with the support of his partner and some belated maturity he expresses a genuine desire to mend his ways and return to a stable relationship and stable employment where available". He was satisfied that the applicant had demonstrated remorse. He assessed the applicant's prospects of rehabilitation as "reasonable".
An aggregate sentence of 20 months would ordinarily have a non-parole period of 15 months but the judge found that there were special circumstances justifying a reduction of the non-parole period to 11 months. Those circumstances were the applicant's psychiatric issues, his physical disability and his need for extensive supervision upon release.

Grounds and submissions

The applicant pursued his application for leave to appeal without the benefit of legal representation. He raised two grounds of appeal and some further contentions in his written submissions. In all, the following issues were raised: 1 The judge was not made aware that the applicant had been reporting on bail on a daily basis for seven months. 2 The judge erroneously stated that the applicant's criminal record was an aggravating factor when there had been a 27 year gap since his first drug charge. 3 The applicant was entitled to a discount of 25% for his plea of guilty to the supply charge. 3 The sentence is unreasonable or plainly unjust.

1st issue - failure to take into account onerous bail condition

The applicant was required to report to police on a daily basis from 29 June 2017 until 15 December 2017 when the frequency was reduced to four days per week. That is a period of about 5½ months (not 7 months as the applicant suggested).
The applicant said that he had heard about another case in which a judge had taken into account the fact that an offender had been required to report on bail daily for a period of eight months. In some fashion, that judge had taken that period into account as part of the offender's sentence.
A judge may, but is not obliged to, take into account that an offender has been the subject of onerous bail conditions prior to sentencing: Hoskins v R [2016] NSWCCA 157 at [36]. It is a discretionary matter that depends very much upon the facts of the case at hand. A particular circumstance that would favour taking such a matter into account would be if the conditions amount to "the notional equivalent of custody" for which an offender should be given credit in the assessment of sentence: R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [18].
The Crown's "Particulars of Trial" document discloses that the applicant's bail conditions required him to report to Liverpool police station and to live at an address in Liverpool CBD. The applicant confirmed at the hearing that the two were about half a kilometre, "give or take", apart. He submitted, however, that the condition prevented him from doing things like going away for a weekend.
There was no error in the judge not taking into account that the applicant was required to report to police daily whilst on bail because, in the circumstances, there was nothing particularly onerous about it. It may be accepted that it was an imposition but it was not remotely like being held in custody. More particularly, there was no error in the judge not doing something that he was not asked to do.

2nd issue - error in relation to the criminal record

Ground 2 was stated as follows: "Judge made an error in stating that criminal record an aggravating factor when in fact it had been 27 years gap from my first drug charge in 1991 for a gram of pot (marijuana)."
The judge was well aware of the period that elapsed since the applicant's last drug offence, he having raised it with the applicant during his evidence (see above at [13]).
As to whether the judge took into account the criminal record as an aggravating factor, the Crown submission was to the effect that it was neither an aggravating nor mitigating factor. The judge said in his sentencing remarks: "It is clear, as the Crown submits, that his lengthy criminal record does not entitle him to any leniency but of course his record is not an aggravating factor to be taken into account an aggravating factor is that he has a record of previous convictions. The Crown does not point to any other aggravating factors which should be taken into account …"
Something has gone awry, either in what his Honour actually said or in the way in which it has been transcribed but I am satisfied that this passage should be read as an endorsement by his Honour of the proposition advanced by the Crown that the applicant's record was "not an aggravating factor to be taken into account". That this statement was preceded by "of course" suggests that his Honour was somewhat emphatic in accepting the proposition. The words that immediately follow appear to be his Honour reading words from s 21A(2)(d) of the Crimes (Sentencing Procedure) Act which provides that it is an aggravating factor that must be taken into account if: "(d) the offender has a record of previous convictions …"
I am not satisfied that it should be concluded that the judge took the applicant's prior record into account as an aggravating factor.

3rd issue - the applicant was entitled to a discount of 25% for the supply charge

There is no merit in this issue. The judge could have taken a less favourable view of the utilitarian value of the applicant's plea to the drug supply charge because of the retraction of the plea and restoration of it only after he had obtained an advantage of the Crown not proceeding in relation to related summary charge. However, the judge said, "my view is that a 25% discount on any term of imprisonment should be allowed for the utilitarian value of the pleas".

4th issue - the sentence is manifestly excessive

The unsuccessful contention that the applicant should have received credit for his bail conditions seems to be allied with the contention that an 8 or 9 month sentence "is more than adequate for the crime committed".
The applicant also referred to Dr Chew having said that the applicant's prognosis and recidivism risk would be improved by engagement with treatment and abstinence from illicit drugs and that future treatment in the community should be coordinated by his GP with the local community mental health team. The applicant submitted that keeping him in gaol does not achieve this and is not of any benefit to him or the community.
While the two offences for which the applicant was to be sentenced were nowhere near the most serious examples of their type, there was nothing minor or trivial about them, given they were being dealt with on indictment in the District Court and were thereby subject to the prescribed maximum penalties of imprisonment for 15 years and 14 years respectively. The assessments of individual sentences of 15 months and 19 months indicate that the judge correctly had regard to the relative seriousness of the offences and tempered the sentencing response on account of the various personal circumstances of the applicant.
I am not persuaded there is anything about the sentences assessed for the individual offences, or the aggregate term in fact imposed, that can be described as unreasonable or plainly unjust.

Conclusion and orders

There is no merit in any of the grounds and issues raised by the applicant. I propose the following order: Leave to appeal against sentence refused.

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