Hristovksi v R

Court of Criminal Appeal (NSW)|2010-06-02|Before: Grove J, Johnson J, Mr P, Clellan CJ

The Applicant's Subjective Circumstances 16 The Applicant was born in July 1985 and was 22 years of age at the time of the offences and 23 years of age at the time of sentence. He has no prior criminal history. 17 The Applicant's father gave evidence (which was accepted by the sentencing Judge) concerning his son's education and employment history and his financial difficulties. The Applicant completed secondary school education and then undertook a TAFE welding course which he did not complete. The Applicant worked with his father in 2003 and 2004 before starting his own business in 2005 building and fine-tuning racing cars. The Applicant's father gave evidence that his son fell into debt and gambled on poker machines. The Applicant's parents took out a short-term loan of $30,000.00 to pay debts to suppliers to assist the Applicant. The Applicant continued to gamble and was declared bankrupt in January 2007. 18 Thereafter, the Applicant commenced work in the motor vehicle industry in Sydney which ceased in about July 2007. The Applicant commenced a relationship with a young woman and she moved into the Applicant's parents' home. His parents were concerned at this time that he was using cocaine. A short time prior to his arrest in January 2008, his parents had asked the Applicant and his partner to leave the family home. 19 The Applicant did not give evidence at the sentencing proceedings. Documents were tendered in the District Court evidencing courses and programs which the Applicant had undertaken whilst in custody, including gambling awareness, alcohol and other drugs awareness program and certificate courses in information technology and access to work and training. 20 His Honour found that the Applicant was of prior good character and assessed his prospects of rehabilitation as being good. 21 The Applicant had pleaded guilty to the charges in the Local Court. The sentencing Judge accepted that the pleas had been entered at the earliest opportunity and allowed a 25% discount for the utilitarian benefit of the pleas.

Grounds of Appeal 22 The Applicant relies upon the following grounds of appeal:

(a) Ground 1 - his Honour's sentencing discretion miscarried because he failed to meaningfully compare the objective seriousness of the offences constituted by Counts 2 and 3 with abstract offences in the middle of the range of objective seriousness;

(b) Ground 2 - his Honour erred by assessing the objective seriousness of the offences constituted by Counts 2 and 3 as being within the mid-range for offences of these types;

(d) Ground 4 - the total effective sentence is manifestly excessive.

Grounds 1 and 2 - Suggested Error Concerning Objective Seriousness of Counts 2 and 3 23 It is convenient to consider these grounds together. Before moving to the submissions made with respect to these grounds, it is appropriate to set out the sentencing Judge's findings concerning the offences (ROS7-8): "The facts indicate that the offender was involved in the supply of large amounts of drugs. He was obviously in a position to supply these quantities to the undercover operative on different occasions. The offender had the capacity to earn an honest living within the community but under financial pressure and his problem with gambling chose what no doubt he believed was a way to make easy money. The Crown submitted that 'The offender is part of a drug hierarchy in the supply of prohibited drugs and his criminality is to be addressed in the light of the role he played.' However the facts do not easily lend to an assessment of exactly where the offender was positioned in the hierarchy. Exhibit 1 are poker machine records from the West Illawarra Leagues Club. Those records are in respect of payouts and bonus points awarded to the offender during the period between July 2007 and January 2008. It is a little difficult to know what to make of those records. They were tendered to support the proposition that the offender continued to have a gambling problem in the second half of 2007 and the beginning of 2008. However those records might also be consistent with the laundering of drug money.

Shortly before his arrest the offender was still living with his parents and on the material that has been provided to me it appears that his lifestyle was certainly not accompanied by the trappings of wealth that one might expect from dealers who profit from such substantial supplies. He was in considerable debt to his parents and on the information that has been provided to me it would appear that they were certainly not the beneficiaries of any repayment of their financial undertakings. I will elaborate on the details of this debt when I deal with the subjective circumstances. Accordingly I am satisfied on the balance of probabilities that the offender was a middle man and did not reap major rewards. However drug trafficking requires middle men and couriers and such a finding will not necessarily lead to a more lenient sentence. My assessment of the objective seriousness of each of the drug offences so far as the offender's involvement is concerned is that they fall within the mid range for offences of their type.

In respect of the firearm offence the offender was carrying a loaded .22 calibre pistol in his pocket at the time of his arrest and I regard this as slightly above the mid range of objective seriousness."

Submissions 24 In support of Ground 1, Mr Boulten SC, for the Applicant, submitted that the sentencing Judge had expressed a bare conclusion concerning the objective seriousness of the two offences of supplying a large commercial quantity of drugs without disclosing any further reasoning that grounded the decision. The sentencing Judge did not describe any particular characteristics of the offending conduct which justified the conclusion that the offences fell within the mid-range. Nor did he undertake what was submitted to be the necessary exercise of considering what constitutes an abstract mid-range offence and then comparing that offence with the instant offences. 25 With respect to Ground 2, Mr Boulten SC submitted that his Honour had erred by concluding that the offences which constituted Counts 2 and 3 were within the mid-range of objective seriousness. It was submitted that the sentencing Judge's failure to compare salient features of the instant offences with putative or abstract mid-range offences may well have led his Honour to over value the objective seriousness of the two offences. 26 It was submitted that the offer to supply a large commercial quantity of MDMA (ecstasy) never materialised, although the conduct constituted the offence in Count 2. Count 3 involved the actual supply of 5,000 methamphetamine tablets. Whilst acknowledging that there was no fixed hierarchy of offences whereby offers to supply are always less serious than actual supplies, Mr Boulten SC submitted that, as a generality, an offer would usually be less serious than an actual supply because one aspect of the seriousness of an offence is the consequence of the conduct so that, where drugs have not been supplied, the consequences are less serious than where they have been supplied. 27 With respect to Counts 2 and 3, it was submitted that no drugs were likely to be disseminated to the community (as the Applicant was supplying to undercover police officers) so that the objective gravity of both offences was diminished by some margin. 28 Although the Applicant had been requested to supply 5,000 MDMA tablets (for which the large commercial quantity is 500 grams), he actually supplied 5,000 amphetamine tablets. It was submitted that the quantity of amphetamines involved in Count 3 (1.221 kilograms) was not very much greater than the large commercial quantity for that drug (one kilogram). 29 It was submitted that an assessment of the objective seriousness of Count 2 should have proceeded upon the basis that, although the Applicant intended to supply 5,000 MDMA tablets within two hours on 25 January 2008, it had not been demonstrated beyond reasonable doubt that he had the ability to do so. 30 Senior counsel pointed to the findings that the Applicant was "a middle man" who "did not reap major rewards" and that his lifestyle was "not accompanied by the trappings of wealth that one might expect from dealers who profit from such substantial supplies". It was submitted that there was evidence that suggested that the Applicant was at least partly motivated to commit the supply offences because of his indebtedness. 31 In all the circumstances, Mr Boulten SC submitted that it was not open to the sentencing Judge to find that these offences fell within the mid-range of objective seriousness, and a finding ought to have been made that they fell below the mid-range. 32 Concerning Ground 1, the Crown submitted that the sentencing Judge had articulated his reasoning sufficiently to comply with the requirements for sentencing for a standard non-parole period offence. The Crown submitted that it was not necessary for the sentencing Judge to spell out his reasoning process in great detail. The Crown submitted that his Honour summarised the facts and then considered the objective seriousness of the offences in a manner that satisfied the requirements of the law so that the first ground of appeal ought be rejected. 33 With respect to Ground 2, the Crown submitted that the findings of the sentencing Judge were open to him. Reference was made to the quantity of the drugs involved and to the functions and activities of the Applicant with respect to supply and his employment of security measures to avoid detection. 34 The Crown submitted that the fact that the drugs would not reach the community had only a minor impact on sentence, as did the fact that Count 2 involved an offer to supply.

Decision 35 In Ali v R [2010] NSWCCA 35, the Court said at [33]-[34]: "33 This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47].

34 The assessment of objective criminality when a standard non-parole period is provided should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue: R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [13]; R v PGM [2008] NSWCCA 172 at [26]." 36 The sentencing Judge made findings of fact with respect to the offences and then made further findings characterising the objective seriousness of the standard non-parole period offences. 37 With respect to Ground 1, I do not accept the Applicant's submission that it was necessary for the sentencing Judge to articulate an abstract offence for the purpose of comparison with the present case to make a finding as to objective seriousness: Dunn v R [2010] NSWCCA 128 at [14]-[18]. 38 It is not an essential requirement when sentence is being passed for a standard non-parole period offence that the sentencing Judge must erect an abstract offence in the middle of the range of objective seriousness for the purpose of then comparing that abstract offence with the actual offence before the Court. The authorities make clear that the characterisation of the objective seriousness of the instant offence will involve an assessment by the sentencing Judge of features of the offence which bear upon an assessment of its objective seriousness. That is what the sentencing Judge did in this case. Even if there was some error in his Honour's approach (and I do not think that there is), it would be an error of process only and it would not necessarily follow that there was error in the sentence passed: R v McEvoy [2010] NSWCCA 110 at [89]; Dunn v R at [20]. I would reject the first ground of appeal. 39 With respect to Ground 2, an assessment of objective seriousness must be made by reference to the evidence. The sentencing Judge observed that the facts did "not easily lend to an assessment of exactly where the offender was positioned in the hierarchy" (see [23] above). In the context of sentencing Commonwealth drug offenders, it has been observed that a sentencing court may encounter difficulty in characterising the role of an offender in a criminal enterprise, given that in most cases the full nature and extent of the enterprise is unlikely to be known to the sentencing court: R v Lee [2007] NSWCCA 234 at [25]. It remains necessary for the sentencing court to make findings concerning the objective criminality of an offender. Of course, where a standard non-parole period applies, an assessment of the objective seriousness of the offence is required for statutory purposes as well. 40 In this case, an agreed statement of facts was tendered. The Applicant's electronically recorded interview with police was not tendered, no doubt because it was accepted by the parties that it did not contain a reliable account. The Applicant did not give evidence at the sentencing hearing. The sentencing Judge assessed the evidence concerning the words and actions of the Applicant, his ability to obtain a very substantial quantity of a prohibited drug for supply and his offer to supply a further very substantial quantity of a prohibited drug. It was the Applicant who was dealing directly and repeatedly with the undercover police operative to further his drug supply enterprise.

41 The fact that the drugs actually supplied would not be disseminated to the community because the supply took place to an undercover police operative does not materially assist the Applicant. The Applicant fully intended that the drugs would be disseminated to the community, and it was no act of the Applicant which stood in the way of such dissemination: Ly v R [2008] NSWCCA 262 at [27]. 42 With respect to submissions made concerning Count 2, the offer to supply offence, similar reasoning leads to the conclusion that the Applicant is not greatly assisted by that consideration in this case. It was the arrest of the Applicant by police which had the effect of confining the offence to one of offer to supply. The Applicant intended to obtain and supply 5,000 MDMA tablets. He said that he would do so within two hours. Whatever may have happened with earlier supplies, the appropriate finding, to the criminal standard, is that the Applicant had the ability to supply this quantity of MDMA, and would have done so but for his arrest by police. Features of the Applicant's offer to supply offence support the trial Judge's findings concerning Count 2: Vu v R [2006] NSWCCA 188 at [88]-[89]. 43 Relevant to both these submissions is the fact that the Applicant's offences could not be characterised as isolated offences: Ly v R at [ 27]. 44 There is a further feature which bears upon the objective seriousness of Counts 2 and 3. On 25 January 2008, the Applicant was armed with a loaded pistol. In Thalari v R [2009] NSWCCA 170 at [88]-[89], it was observed that the fact that an offender possessed a loaded pistol whilst involved in drug supply bore upon the objective seriousness of the pistol offence. Mr Boulten SC accepted at the hearing that the reverse must also be correct - that possession of a loaded pistol was relevant to the objective seriousness of the drug supply offence. This must be so. A person who carries a loaded pistol whilst engaged in the supply of drugs may be treated as a serious and significant participant in the drug supply enterprise, and not a lesser or minor player. Although the sentencing Judge did not refer to this factor in assessing the objective seriousness of the drug supply offences, it is an undisputed fact in this case, and remains an aspect which this Court must consider in determining whether Ground 2 is made out. 45 The evidence before the sentencing Judge provided a foundation for a finding that each of Counts 2 and 3 fell within the mid-range of objective seriousness for offences of their type. These findings were open to the sentencing Judge and no error has been demonstrated with respect to them. 46 I would reject the second ground of appeal.

Ground 3 - The Sentences Imposed in Relation to Counts 2 and 3 are Manifestly Excessive

Ground 4 - The Total Effective Sentence is Manifestly Excessive 47 It is appropriate to consider these grounds together.

Submissions 48 Mr Boulten SC submitted that the sentences imposed in relation to Counts 2 and 3 were both outside the range which was reasonably available in the light of all relevant sentencing factors. He submitted that the sentences were manifestly excessive even though his Honour ordered that all sentences were to be served concurrently. 49 Mr Boulten SC repeated the submissions made with respect to the objective seriousness of the offences and submitted that the Applicant's subjective features were generally quite favourable. He had no prior criminal convictions and was relatively young. He was using drugs in the period prior to his offending and was burdened with substantial debt. The sentencing Judge accepted that the Applicant had good prospects of rehabilitation. The Applicant had pleaded guilty at the earliest opportunity thereby attracting a 25% discount. When the Applicant's objective criminality is properly characterised and the relevant mitigating features considered, it was submitted that a substantially less severe sentence should have been imposed in relation to Counts 2 and 3 and overall. Reliance was placed upon a number of other sentencing decisions and a review of sentencing statistics in support of a submission that these sentences were outside the range reasonably available. 50 The Applicant submitted that the sentencing discretion miscarried in this case and that this Court should quash the sentences in relation to Counts 2 and 3 and impose less severe sentences in relation to those charges. It was submitted that the finding of "special circumstances" should be maintained and a less severe non-parole period should be fixed in relation to those counts. 51 The Crown emphasised that the sentences were not accumulated even partially, even though the first offence involved two episodes of supplying significant amounts of drugs on different days. Although these dealings led into Counts 2 and 3, they were separate from them. 52 Although the possession of the firearm was no doubt related to the Applicant's drug dealing, the Crown submitted that it was, nonetheless, a separate offence of a very serious kind. 53 The Crown submitted that it would have been appropriate to accumulate the sentences to some degree in this case and that his Honour should have done so. Although the Applicant had no prior criminal history, the Crown submitted that this factor is traditionally given less weight in relation to drug supply matters, in particular where conscious criminality is undertaken for reward. Further, in the circumstances of this case, the offences could not be treated as isolated instances or aberrations. 54 The Crown submitted that the Applicant's financial pressures and his problem with gambling may provide some explanation for his offending, but nothing to excuse the conduct. 55 With respect to the Applicant's reliance upon other sentencing decisions, the Crown urged caution relying upon R v Morgan (1993) 70 A Crim R 368 at 371. Likewise, the Crown submitted that caution was required in considering sentencing statistics given the wide variety of circumstances involved: R v Lao [2003] NSWCCA 315 at [32]-[33]. The Crown responded with respect to the sentencing decisions relied upon by the Applicant, contending that there were significant aspects of each decision which limited its usefulness in considering a claim of manifest excess in the present case.

Decision 56 The question to be determined is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. A narrow focus upon Counts 2 and 3 introduces an element of artificiality to the case: Thalari v R at [82]. It is necessary to keep in mind the fact that four entirely concurrent sentences were imposed for four separate and serious offences. 57 In the course of determining the second ground of appeal, observations were made concerning the objective seriousness of the large commercial drug supply offences committed by the Applicant. On the subjective side, the sentencing Judge took into account the Applicant's prior good character, a factor which provides less assistance on sentence for offences of this type: R v OPA [2004] NSWCCA 464 at [40]. In addition, regard was had to the Applicant's financial difficulties, gambling problem and his youth. 58 I have accepted that it was open to the sentencing Judge to conclude that Counts 2 and 3 lay within the mid-range of objective seriousness. A standard non-parole period of 15 years constituted a reference point to be taken into account on sentence. Favourable findings were made with respect to the Applicant's subjective circumstances. It remained the case, however, that these were most serious drug supply offences, committed by an offender who was armed with a loaded pistol. I am not persuaded that the individual sentences imposed with respect to Counts 2 and 3 were manifestly excessive. 59 With respect to Ground 4, there is force in the Crown submission that the circumstances of this case ought to have seen at least partial accumulation of sentences: R v XX [2009] NSWCCA 115 at [52]. Instead, the sentencing Judge adopted the approach of the imposition of fixed terms of imprisonment for Counts 1 and 4 which were wholly contained within the concurrent sentences imposed for Counts 2 and 3. 60 I have considered the authorities and statistics relied upon by the Applicant. Caution is required in utilising material of this type: R v Morgan at 371; R v Lao at [32]-[33]. There is the need for more than the usual caution in this case because of the imposition of entirely concurrent sentences for all offences. A number of the decisions of this Court relied upon were Crown appeals: R v Stankovic [2006] NSWCCA 229; R v Nikolic [2007] NSWCCA 232; R v Stricke [2007] NSWCCA 179; R v Knight and Biyvanua [2007] NSWCCA 283; 176 A Crim R 338; R v Gao and Lim [2007] NSWCCA 353; R v XX. I do not consider that the cases relied upon by the Applicant establish a "range" of sentence for offences of this type: R v Morgan at 371. The bare statistics do not provide any real assistance, especially where concurrent sentences were imposed in this case. 61 A claim of manifest excess with respect to all sentences requires consideration as to whether an effective non-parole period of 10 years with a balance of term of four years, is manifestly excessive having regard to the totality of the criminal conduct revealed by the Applicant's crimes, including the Form 1 offences. I am not persuaded that a non-parole period and balance of term of this length is unreasonable or plainly unjust for an offender who has committed very serious drug offences for profit and is armed with a loaded pistol for the purpose of that activity. The Form 1 offence of possession of anabolic steroids added a further dimension which needed to be taken into account in passing sentence. 62 Even if the Applicant had made good the submission that some lesser sentence was warranted with respect to Counts 2 and 3 (which he has not), then the claim of manifest excess with respect to all sentences would need to be considered upon the basis that a measure of accumulation would have been appropriate for Counts 1 and 4. All of this would have led to the position that an effective total sentence of the magnitude of that imposed would have been fixed, albeit by a different route of accumulated sentences.

Conclusion 63 The Applicant has not made good any of the grounds of appeal. I return to the issues mentioned at [7] and [8] above. 64 The sentences imposed for Counts 1 and 4 were contrary to statute. However, no ground of appeal alleged error in this respect. When errors of this type have been made in the past, this Court has intervened to correct the error on a Crown appeal (R v Rice [2004] NSWCCA 384 at [116]-[118]) or by an order under s.7(1A) Criminal Appeal Act 1912 on an offender's appeal where another sentence was being quashed or varied (Leddin v R [2008] NSWCCA 242 at [12]-[17]; SGJ v R [2008] NSWCCA 258 at [76]-[78], [116]). In Forbes v R at [4], [39] and [65], an error of this type was the subject of a ground of appeal and was corrected on an offender's appeal, as was the case in Aguirre v R [2010] NSWCCA 115 at [31]-[36]. However, s.7(1A) has no application here as no sentence is to be quashed or varied. There is no Crown appeal on foot. 65 The correction of error concerning Counts 1 and 4 would see the fixing of a sentence in each case in compliance with ss.44 and 45(1) Crimes (Sentencing Procedure) Act 1999, comprising a non-parole period and balance of term. The fixed term would constitute the non-parole period component of the sentence: R v Dunn [2004] NSWCCA 346 at [161]. However, the addition of a balance of term would serve to increase the sentences on Counts 1 and 4, a course which is available in an appropriate case under s.6(3) Criminal Appeal Act 1912: Aguirre v R at [33]-[36]. Of course, the total sentence for each offence would still fit under the umbrella of the non-parole period of 10 years. However, in the absence of a ground of appeal which is upheld by this Court, no basis exists to intervene and impose a fresh sentence on these counts. Although the sentences imposed for Counts 1 and 4 were contrary to the terms of the statute, the error ought not be treated as one affecting the validity of the sentence passed in each case: Project Blue Sky Inc v Australia Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 388-391 [91]-[93]. 66 An error of the type affecting Counts 1 and 4 may be corrected by order of the sentencing court under s.43 Crimes (Sentencing Procedure) Act 1999. 67 The irregularity concerning the Form 1 offences was not the subject of a ground of appeal in this Court and no warrant exists for this Court to intervene to correct the record in this respect.

68 I propose that leave to appeal against sentence be granted, but that the appeal be dismissed. **********

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R v Way [2004] NSWCCA 131; 60 NSWLR 168 Forbes v R [2009] NSWCCA 292 Ali v R [2010] NSWCCA 35 Dunn v R [2010] NSWCCA 128 R v McEvoy [2010] NSWCCA 110 R v Lee [2007] NSWCCA 234 Ly v R [2008] NSWCCA 262 Vu v R [2006] NSWCCA 188 Thalari v R [2009] NSWCCA 170 R v Morgan (1993) 70 A Crim R 368 R v Lao [2003] NSWCCA 315 Markarian v The Queen [2005] HCA 25; 228 CLR 357 CASES CITED : R v OPA [2004] NSWCCA 464 R v XX [2009] NSWCCA 115 R v Stankovic [2006] NSWCCA 229 R v Nikolic [2007] NSWCCA 232 R v Stricke [2007] NSWCCA 179 R v Knight and Biyvanua [2007] NSWCCA 283; 176 A Crim R 338 R v Gao and Lim [2007] NSWCCA 353 R v Rice [2004] NSWCCA 384 Leddin v R [2008] NSWCCA 242 SGJ v R [2008] NSWCCA 258 Aguirre v R [2010] NSWCCA 115 R v Dunn [2004] NSWCCA 346 Project Blue Sky Inc v Australia Broadcasting Authority [1998] HCA 28; 194 CLR 355

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