Godfrey v R

1. At the applicant's request, the judge took into account the following offences in sentencing for the offence of attempting to supply a prohibited firearm (sequence 10): Seq No Date / Offence Max penalty 2 14.5.14: Sustain loss of traction Fine of $3300 s 116(2)(b) Road Transport Act 2013 7 6.3.14: Possess unregistered firearm 14 yrs s 36(1) Firearms Act 1996 15 Between 20.2.14 - 11.6.14: Supply prohibited drug 10 yrs and/or fine of $220,000 s 25(1) Drug Misuse and Trafficking Act 1985 18 11.6.14: Possess prohibited weapon 14 yrs s 7(1) Weapons Prohibition Act 1998

1. Further, the following summary offences listed on a certificate (s 166 Criminal Procedure Act 1986 (NSW) were also dealt with by his Honour: Seq No Date / Offence Max penalty/SNPP Sentence 14.5.14: Drive manner dangerous 9 mths and/or a fine of $2200 Convicted with no penalty - s 10A 3 s 117(2) Road Transport Act 2013 Disq: Auto - 3 yrs Disq: 12 mths Min - 12 mths 4 14.5.14: Exceed speed limit by more than 20 km/h Fine of $2200 Convicted with no penalty - s 10A s 20 Road Rules 2008 Disqualified for such period as court specifies No disqualification

1. Leave is sought to appeal on the following grounds: 1. His Honour failed to discount each indicative sentence to reflect the utilitarian value of the applicant's pleas of guilty. 2. The sentencing judge failed to give any weight to the applicant's subjective case when determining the total aggregate sentence. 3. The aggregate sentence was manifestly excessive.

Ground 1 - failure to discount the sentences for the individual offences

1. This ground is concerned with a short passage in his Honour's judgment that appears after his survey of the offences and the applicant's personal circumstances: "Returning to the seriousness of the offences. Taken together the offences are such that a total sentence of at least 12 years imprisonment would have been applied had these matters gone to trial. In my view, no lesser sentence is warranted due to the seriousness and the variety of the offences committed. The offender has pleaded guilty at the earliest opportunity and is entitled to a reduction of 25% from that sentence. I am satisfied that the offender is entitled to a longer period on parole …"
2. Senior counsel for the applicant pointed out (correctly with respect) that the benefit to an offender for having pleaded guilty is something that must be taken into account in the assessment of the individual sentences. It is not something that is taken into account after having determined upon an aggregate sentence: see, for example, SHR v R [2014] NSWCCA 94 at [35]-[43]; JM v R [2014] NSWCCA 297; 246 A Crim R 528 at 39.
3. Senior counsel for the Crown pointed out, however, that the judge did not apply a discount of 25 per cent to a 12 year period so as to arrive at an aggregate sentence of 9 years. Following the above passage in the judge's sentencing remarks, he announced that he made a finding of special circumstances so as to reduce the proportion of the sentence represented by the non-parole period. Next, he announced the indicative sentences for the individual offences. It was only then that his Honour announced and imposed the aggregate sentence of 8 years.
4. With respect to his Honour, the sentencing remarks are not a model of clarity. (There are other aspects of the judgment which are concerning but are not relevant to any ground of appeal.) The important thing, however, is to bear in mind that an appeal is against the aggregate sentence and not the indicative sentences: JM v R at 40. A failure to apply a discount to the indicative sentences might cause an aggregate sentence to be excessive but if there is an erroneous application of a discount to the aggregate sentence it might not.
5. In any event, I am not satisfied that this ground is made out. For the reasons advanced by the Crown, I am not persuaded that his Honour erroneously applied the discount for the pleas of guilty to the aggregate sentence. Moreover, there is nothing to indicate that his Honour did not apply it to each of the indicative sentences. The key to this appeal is the third ground in any event.

Ground 2 - failure to give any weight to the applicant's subjective case

1. This ground is concerned with the first two sentences in the passage quoted above. It is contended that in saying "returning to the seriousness of the offences" his Honour made an assessment of the aggregate sentence without having any regard to the applicant's subjective case.
2. This complaint is untenable. I accept, again, that the sentencing remarks are not entirely clear but I tend to the view that his Honour may have been saying that if one were to focus solely upon the objective seriousness of the offences an aggregate term of at least 12 years was called for. The fact that his Honour subsequently announced indicative sentences and an aggregate term of 8 years indicates quite clearly in my view that the applicant's personal circumstances were factored into the assessment.
3. It was immediately prior to the passage quoted above that his Honour reviewed the applicant's subjective case. In the course of doing so he referred to or said the following: "The offender's criminal record was not extensive and that is perhaps a matter that requires some leniency being applied in his favour." "Persons who have engaged in serious criminal activity when young for a relatively short period of time do have a better prospect of rehabilitation. The offender could fall into that category." "The offending was committed whilst the offender was subject to the conditions of a good behaviour bond. That is an aggravating factor on the sentence." His Honour referred to a psychological report that was before him. "He clearly has ongoing support from his family which is a factor that will greatly enhance his prospects of rehabilitation. It is a matter that I have taken into account …" Reference was made to the applicant's "consistent work history" and the description of him by the psychologist as "intelligent". The offending may have commenced as a result of the applicant's drug use "but his criminal activities went well beyond mere drug use". If the applicant "is able to avoid drug use in the future, return to live with his family and with their support and … become re-employed, there is every reason to accept that he can be fully rehabilitated. It is perhaps too early to say with confidence that that will be the case. Firstly, he must face the prospect of a lengthy gaol term." General and specific deterrence had to be emphasised. "The offender has apologised for his behaviour in the presence of his family and I accept that he is contrite for his actions."
4. In the light of the foregoing, it is clear that his Honour was mindful of, and took into account, the applicant's subjective case. This ground must be rejected.

Ground 3 - manifest excess

1. A major component of the argument advanced in support of this ground was that the judge said after announcing the indicative sentences and before announcing the aggregate term: "Each of the sentences will be partially concurrent."
2. The offences of Attempt to supply a prohibited firearm and Possess unauthorised prohibited firearm concerned the same firearm. The indicative sentences were 6 years and 3 years 6 months respectively. It was stated in written submissions that "the possession offence relied on conduct included in the offence of attempting to supply the firearm". It was submitted that the judge gave no consideration to "the commonality of factors between those two offences" and that if this had been done the sentences for them would have been entirely concurrent.
3. The Crown responded, correctly in my view, that the criminality in the possession offence was not entirely subsumed with the attempted supply offence. The applicant's possession of the firearm was not confined to the time he attempted to sell it. By his own admission he had the item in his possession for about four years; it was given to him by a friend when he was aged 17.
4. Moreover, when one compares the indicative sentence of 6 years for the attempted supply offence and the indicative sentences for all of the other offences (which total 16 years) with the aggregate term of 8 years it is obvious that there is substantially more concurrency than accumulation.
5. The attempt to supply a prohibited firearm offence involved the applicant trying to sell a shortened .22 rifle which was only thwarted by the intervention of police. The judge's finding that it was "a very serious offence which must be reflected in the penalty" was not challenged.
6. The three offences of supplying methylamphetamine and MDMA on three or more occasions in a 30 day period for financial or material reward involved the applicant engaging in a business of supplying these drugs on a regular basis. He used multiple mobile telephones subscribed with fictitious details to lessen the chance of detection. In the three and a half month period of the police investigation there were in excess of 16,500 calls and text messages, many relating to drug supply and collection of the proceeds. There was also the offence on the Form 1 of supplying 36 grams of cannabis in a number of transactions over that period. The judge's findings that the applicant "appears to have been well immersed in the business of drug selling" and that "he was a substantial drug supplier in this region" and his rejection of the applicant's description of himself "as someone who has slipped into drug dealing merely to pay for his own drug use" were not challenged.
7. The offence of possessing an unauthorised pistol concerned the finding in the applicant's bedroom of a replica .45 calibre handgun with magazine. An offence of possessing a prohibited weapon which was taken into account arose from a finding of metal knuckledusters in the same place.
8. The offence of not stopping during a police pursuit, along with the other driving offences on the Form 1 and s 166 certificate, commenced with the applicant accelerating away harshly from a service station in Tweed Heads West after he became aware that a police car had pulled in behind him. He later bragged about his driving skills and commented that he had reached a speed of 240 km/h to evade the police; a fact not borne out by the police observations but the speed at which he drove was high nonetheless and the manner of his driving was dangerous in other respects as well.
9. I have earlier referred to aspects of the applicant's subjective case which were specifically mentioned by the sentencing judge. The following succinct summary of his case was provided in written submissions: The applicant had what might be described as a "normal" upbringing but it was marred by ADHD and consequent behavioural difficulties at school. At the time of the offences he was relatively young with a limited criminal history. He was engaged in serious criminal behaviour but it was of "a relatively short duration" (ROS 11) and he retained the support of his family and partner and demonstrated insight and remorse in relation to his offending. There was good reason for his Honour to be optimistic about the applicant's prospects of rehabilitation and reduce the weight to be given to specific deterrence.
10. I am not persuaded that the aggregate sentence is manifestly excessive when regard is had to the range of serious criminal offending in which the applicant engaged over an extended period. I am satisfied that it appropriately and adequately took into account the applicant's personal circumstances. In short, the sentence was one which was comfortably within the range of the sentencing judge's discretion.
11. I would only grant leave to appeal because of the lack of clarity in some aspects of the sentencing judgment. In the end, however, the appeal lacks merit.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

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