Grills v R

Court of Criminal Appeal (NSW)|2015-11-09|Before: Beazley P, Davies J, Hulme AJ

Solicitors: S E O'Connor (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/334205 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 December 2014 Before: McLoughlin DCJ File Number(s): 2013/334205

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Davies J. I agree with his Honour's reasons and proposed orders.
DAVIES J: The Applicant pleaded guilty in the District Court to two offences as follows: (1) Supply a prohibited drug (methylamphetamine). The maximum penalty for this offence is 15 years imprisonment. (2) Possess a prohibited firearm not being authorised to do so by a licence or permit. The maximum penalty for this offence is 14 years imprisonment. There is a standard non-parole period of 3 years.
Attached to the first offence on a Form 1 were two further offences as follows: (3) Possess a prohibited drug being cannabis. The maximum penalty for this offence is 2 years imprisonment. (4) Deal with property suspected as proceeds of crime. The maximum penalty for this offence is 2 years' imprisonment.
Attached to the second offence charged on a Form 1 were the following offences: (5) Possess a shortened firearm. The maximum penalty for this offence is 10 years imprisonment. (6) Possess an unregistered firearm (two counts). The maximum penalty for this offence is 5 years imprisonment. (7) Possess explosives without a licence. The maximum penalty for this offence is 12 months imprisonment. (8) Possess a prohibited weapon. The maximum penalty for this offence is 14 years imprisonment. (9) Not keep firearm safely (two counts). The maximum penalty for this offence is 2 years imprisonment. (10) Possess ammunition without a licence. The maximum penalty for this offence is a fine of $5,500.

Factual background

The following is a summary of the facts found by the Sentencing Judge which were taken from the Statement of Facts tendered by the Crown at the sentencing hearing.
The Applicant was residing at an address in Kurri Kurri with his wife and young son. On 5 November 2013 the police obtained a search warrant to search the Applicant's premises. At the time the Applicant was present at the premises with his wife and young child and another man. Those other persons, apart from the Applicant, were permitted to leave before the warrant was executed. The police found the following items of interest: a. In Vehicle COL16K (parked in driveway) behind driver's seat. i. A rifle scope b. Lounge room i. On the lounge 1. Box containing 42 x 44 calibre Magnum ammunition 2. A Samsung mobile phone X0001308431 3. A blackberry phone X0001308432 ii. In a back pack behind the lounge: 1. a sawn-off single barrel shot gun 2. 5 shot gun cartridges and a spent shot gun cartridge iii. Behind the lounge 1. A silver coloured machete with a green cord handle iv. On Coffee table 1. Digital scales (Digitech) v. Under the Coffee table 1. A single round of 30/30 ammunition vi. Drawer of coffee table 1. 8 plastic resealable bags containing a clear crystal substance a. 1 bag (X0001304717) contained 0.03g presumptive test for amphetamine type substance was positive b. 2 bags (X0001304718) contained methylamphetamine 2.69g at 80.5 % purity one bag weighed 2.16g c. 5 bags (X0001305075) 1 of which contained 0.12g presumptive test for amphetamine type substance was positive vii. Behind the Lounge 1. A box containing 2 fireworks viii. In a back pack 1. A small resealable bag containing 0.68 grams of cannabis ix. On TV cabinet 1. A4 sheet of paper with names and amounts (X0001308428) x. In lounge room (not specified) 1. A4 Sheet of paper with names and amounts (X000130S430) (Marak) c. On the pelmet of the lounge room sliding door i. an electronic shock device consistent with a taser. The device was disguised as a mobile phone (iphone 4). The device was operational. d. On the offender in his wallet and pocket i. $3,550 ii. An Alcatel mobile phone (X0001308436) e. In computer room i. Book containing names and numbers ii. Resealable bag containing crystals (X00013047I9) contained 2.13 grams of methylamphetamine f. Master bedroom i. Behind the bedhead 1. An American Carbine 44 Magnum firearm in a holster. The firearm was fully loaded with 6 44 Magnum rounds. a. DNA consistent with the offender's was located on the trigger of the firearm. … i. In Detached garage i. In a draw at the bottom of a tool box 1. An aluminium tray containing a crystal substance - no prohibited drug detected ii. A box containing 20 x 7.62 calibre ammunition iii. A box containing further fireworks j. The police also located hand written notes consistent with tick lists. k. A large number of glass smoking pipes, a large amount of used and unused plastic resealable bags, a number of sets of digital scales and a number of cutting agents such as MSM or methysulphonylmethane and Glucodin. l. A total of 4.82 grams of methylamphetamine was located and 0.15 grams of substance that tested positive to the presumptive test for amphetamine based substances.
The firearms were examined. The shortened shotgun was found to be in working order. It was both a shortened and prohibited firearm as defined by the Firearms Act 1996 (NSW).
The 44 Magnum calibre Uberti 6 chamber firearm was a shortened firearm, which had a pistol grip added to it. It was both a shortened and prohibited firearm as defined by the Firearms Act.
The various types of ammunition were found to be ammunition as defined by the Firearms Act.
The black handheld defence or anti-personnel device, described as a Taser, is designed to inflict electric shock on contact. It is in working order. It is a prohibited weapon as defined by the Weapons Prohibition Act 1998 (NSW).
The Sentencing Judge then set out the texts which were found on the Applicant's phones. The only reference his Honour made to those messages was that they indicated that the Applicant was not a mere runner for others - others were running for him and he was not, therefore, simply a street level dealer. It may be accepted that the text messages tend to show that the Applicant was being pressed for money by those supplying to him as he was pressing those to whom he had supplied the drugs.

Subjective matters

The Applicant did not give evidence at the sentence proceedings. His mother gave evidence but that was confined to evidence concerning her support for him notwithstanding that he had been already given an opportunity previously to deal with his drug problem (see [21] below).
The Sentencing Judge was also provided with a pre-sentence report. The information in that report was supplied by the Applicant's wife, his parents and his grandparents. It disclosed that the Applicant's parents separated when he was aged six years. However, he remained on good terms with all family members including his stepfather whom his mother married when the Applicant was nine years of age.
The Applicant started using cannabis and methylamphetamine when he was 14 years of age. He also experimented with LSD and ecstasy. He claimed to have ceased to use all illicit drugs after a six month period with the exception of methylamphetamine which continued until September 2008.
On 30 May 2008 he was charged with supplying a small quantity of methylamphetamine. He had been stopped in the street by the police who found him to be carrying a bag with electronic scales and a hundred small plastic resealable bags. He was also found to have 3.46 grams of methylamphetamine on him. The police also found a piece of paper in his possession containing names and numerous amounts of money.
He was sentenced by Newcastle Local Court to a period of six months imprisonment commencing on 28 October 2008. An appeal to the District Court was heard by Judge Nicholson SC on 10 November 2008. In the course of his Remarks on Sentence Judge Nicholson said that a court would conclude that what was contained on the piece of paper containing names and amounts of money were earlier transactions that the Applicant had conducted and that the sums of money were sums owed to him.
By the time the Applicant appeared before Judge Nicholson he had been in gaol for 18 days. The Applicant gave evidence before Judge Nicholson that spending time in gaol "scared the hell" out of him.
Judge Nicholson said that although there was no alternative to a sentence of imprisonment there was an opportunity to focus on the Applicant's rehabilitation. His Honour had him assessed for home detention and said that if he was suitable he would receive an eight month sentence to be served by home detention. The Applicant ultimately served that sentence by way of home detention.
The Applicant told the Corrections officer who prepared the pre-sentence report that he relapsed into using Ice again following the completion of his home detention in August 2009. He said that Ice remained a problem until he was arrested for the present offences.
He and his wife married in September 2013 having been in a relationship for six years prior to that time. His wife had a son by a previous relationship but she lost custody of the son because of the Applicant's arrest and charges.
The Applicant left school after year 10. He completed a three year traineeship in warehouse distribution in addition to some short courses within the construction industry. He worked as a labourer in vineyards in the Cessnock area for some years before setting up a photo booth hire business in 2011.
He said that he had an addiction to Ice at the time of the offences. He claimed he was purchasing drugs surplus to his own needs and on-selling them in part to finance his own addiction. He also claimed to have a significant gambling problem prior to his entry into custody where he would gamble between $200 and $300 per week on the tab.
At some point the Applicant was diagnosed with depression. He was prescribed medication for that condition in custody and had been compliant with it by the time of the pre-sentence report.
The Applicant told the Corrections officer who prepared the report that he was shamed by his actions, that he had hurt his family, his wife, his friends and himself. He said that at the time of his offences he was addicted to Ice and was not thinking of consequences or the impact of his behaviour on those closest to him. He acknowledged the seriousness of the firearms charges.

Remarks on Sentence

As noted earlier, the Sentencing Judge said that the SMS messages indicated that the Applicant was not a mere runner for others but others were running for him. In that way he was not simply a street level dealer. His Honour found that the offence fell slightly below the middle of the range of objective seriousness.
In relation to the firearm offence the Sentencing Judge said that the only conclusion that could be drawn from the finding of a loaded pistol behind the Applicant's bedhead was that it was a tool of trade ready to be used if need be. He said that the offence fell above the middle of the range for offences of its type. He noted that the Applicant was on conditional liberty at the time which was a matter of aggravation.
His Honour made reference to the previous opportunity the Applicant had been given when he had previously been convicted of supplying drugs. His Honour drew attention to the similarity between the previous offending with the small amounts of drugs found together with what his Honour described as the tick lists of money that was owed to the Applicant. His Honour concluded that he could only come to the view that the Applicant had been dealing in drugs significantly and had resorted to the use of firearms to enforce payment and to [en]force his drug transactions.
The Sentencing Judge had regard to the offences on the Form 1 in each case, particularly the maximum sentence for those offences, and determined that after trial the appropriate sentence on each count would be six years and four months imprisonment. By reason of the guilty pleas the sentences would be reduced to five years. His Honour then went on to say: In my view, because of the differences in substances, the differences of offence, and no doubt committed with the overall drug dealing in mind, such sentences should be partially accumulative and partially concurrent. His Honour declined to find special circumstances.

Submissions

The Applicant submitted that it was only when totality was considered that error was demonstrated. The Applicant submitted that as the Sentencing Judge had formed the view that the appropriate non-parole period for each of the two offences, considered separately, would be three years and nine months, the end result of a non-parole period for both offences of six years meant that totality had only absorbed 18 months of that non-parole period. Reference was made to what was said in R v Holder and Johnston [1983] 3 NSWLR 245 at 260 concerning adjustment to sentences by reason of the totality principle.
The Applicant pointed to cases such as R v Najem [2008] NSWCCA 32 and R v AZ [2011] NSWCCA 43 to suggest that the firearm offence in the present case was not properly regarded by the Sentencing Judge as being sufficiently associated with the drug offence to result in a modest accumulation for that firearm offence. In Najem this Court imposed a non-parole period of four years for the offence of conspiracy to inflict grievous bodily harm on the victim and a period of three years for possessing a prohibited pistol where the accumulation was for a 12 month period only.
In AZ a non-parole period of five years and two months was imposed for the supply of a large commercial quantity of a prohibited drug and a non-parole period of one year, one month and two weeks for possessing a prohibited firearm but with an accumulation of only eight months for the second offence.
The Applicant submitted that where there are charges of drug supply as well as possession of firearms ordinarily the matters are very much intertwined which suggests that a greater period of concurrency should be ordered. In that regard attention was drawn to the connection that the Sentencing Judge made between the drug supply and the use of firearms to enforce aspects of that supply.
The Crown submitted that questions of accumulation and concurrency were ultimately discretionary. The Crown submitted that the nature and seriousness of the offending called for a significant measure of accumulation. The two offences did not overlap in criminality because the firearm offence must be seen as serious in itself.

Consideration

Both grounds should be considered together. The Applicant's counsel made clear that no complaint was made that the individual sentences themselves were manifestly excessive, only that the overall effective sentence was excessive by reason of the way the individual sentences were accumulated.
Since matters associated with totality are ultimately discretionary, it is necessary for an error of the House v The King type to be shown before this Court will interfere. The Applicant does not point to any specific error. The submission, when analysed, appeared to be that the accumulation was unreasonable or plainly unjust. That was so, the submission continued, because of the link between the drug offending and the firearm offending.
The principles to be applied with respect to accumulation and concurrency were set out by Hall J (Tobias JA and Kirby J agreeing) in R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52]. Those principles make clear that when applying the principle of totality the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. If it can then the sentences ought to be concurrent but if it cannot the sentence should be at least partially cumulative, and that 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".
In JT v R [2012] NSWCCA 133 Rothman J (with whom Whealy JA and Davies J agreed) said: [71] The exercise involved in determining accumulation and concurrence and the application of the principles of totality are inconsistent with the proposition that one single correct answer will be derived in every circumstance by every judge. The application of the principle of totality is an exercise of discretion, intuitive or instinctive synthesis, and cannot be conducted arithmetically: Pearce at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. The principle assumes that each individual sentence imposed will reflect the criminality of that offence and that the combination of the sentences shall reflect the total criminality of all of the crimes committed: Pearce. … [73] Generally, in the application of the principle of totality, it is difficult, if not impossible, for a sentencing judge to do more than state and apply the principle on the facts as found. Greater transparency is extremely difficult. The process is at the essence of intuitive or instinctive synthesis. As a consequence, once a sentencing judge notes that the principle is being applied (or plainly, by an examination of the process involved, has applied the principle), assuming the facts are correctly stated, in order for an appeal court to intervene, the result must manifest an incorrect application of the principle. Otherwise, interference with the result is impermissible.
In Ayshow v R [2011] NSWCCA 240 Johnson J (with whom Bathurst CJ and James J agreed) said: The 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].
Further, the Sentencing Judge in the present case was not dealing with one isolated firearm offence. There were eight offences involving weapons and ammunition on the Form 1 including possession of another firearm, a Taser and a machete. One of those offences had the same maximum penalty as count 2 and one offence of possessing a shortened firearm carried a ten year maximum. This meant that the criminality in respect of count 2 was high and could not reasonably have been comprehended by the criminality of the drug supply offence.
It may be accepted that there was a clear link between the two counts charged but it was both appropriate and necessary to consider the total criminality when considering matters of accumulation and concurrency. It was the second time the Applicant had been convicted of drug supply in a similar form, that is, where he was not a mere runner for others but others were running for him. Further, he was on conditional liberty at the time and his drug dealing had advanced to the point that he now had a number of weapons including firearms to assist in that business.
In Najem RS Hulme J (with whom Beazley JA and Latham J agreed) said of offences against s 7: [38] Any judgment as to the appropriate penalty to be imposed in respect of the offence the subject of the second count has also to cope with the fact that there are, at least on first impression, two irreconcilable standards against which that offending has to be measured. As has been said, the maximum penalty for the offence is 14 years, yet the standard non-parole period is 3 years. The effect of ss 54A and 54B of the Crimes (Sentencing Procedure) Act is that, for an offence in the middle range of objective seriousness, a court is required to impose the standard non-parole period unless there are reasons for not doing so. [39] One would fairly have expected that the standard non-parole period for an offence in such mid-range to be of the order of half of the maximum. Nothing in the Explanatory Memorandum to the Bill that led to the enactment of these sections or the Ministers' Second Reading speeches when introducing the Bill provides any assistance in answering the quandary. [40] It is appropriate to have regard to the rationale behind the statutory provision against which the Respondent offended. That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights.
The effect of the sentence is that the Applicant must serve a non-parole period of three years with respect to the firearm offence. I am satisfied that this was a sentence open to the Sentencing Judge to impose. When the matters on the Form 1 attached to that offence are regarded, when the Applicant was on conditional liberty at the time of the offending is remembered, when there is a standard non-parole period of 3 years for an offence against s 7(1) of the Firearms Act and the objective seriousness was assessed by the Sentencing Judge as being above the middle of the range, it cannot be said that there was any error in accumulating the sentences in the way his Honour did. The overall sentence is not unreasonable nor plainly unjust.

Conclusion

I propose the following orders: 1. Leave to appeal granted 2. Appeal dismissed.
R S HULME AJ: I agree with the orders proposed by Davies J and with his Honour's reasons.
I would however go further. The Applicant's firearms offence charged was of possessing a prohibited firearm, viz. a .44 Magnum which was found behind the bedhead in the master bedroom, fully loaded with 6 rounds of ammunition. Given the Applicant's drug dealing activity it takes no feat of imagination to conclude why the firearm was possessed and in the location where it was found.
In imposing a sentence for that offence, McLoughlin SC DCJ had also to take into account the matters on a Form 1. An approach which thought no increase in punishment was appropriate in relation to some of the items on that Form 1, such as possession of ammunition and fireworks and absence of registration of the firearms that should not have been there in the first place might be understandable - though I make it clear I am not endorsing it - but no such approach could reasonably be taken to the offences of possessing a shortened shotgun and the Taser-like device the Applicant also possessed. Parliament's view of the seriousness of the Applicant's offending in respect of these weapons is provided by consideration of the maximum terms of imprisonment prescribed -
Possess shortened firearm - 10 years - Firearms Act, 1996, s 62(i)(b)
Possess prohibit weapon - 14 years - Weapons Prohibition Act 1998, s 7 (1)
For all of this criminality the Applicant received an effective increase in sentence of 12 months! There was no Crown appeal but it is impossible to regard such a sentence as other than grossly inadequate.

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