Krivosic v R

Court of Criminal Appeal (NSW)|2017-07-05|Before: Basten JA, Harrison J, Hulme J

Solicitors: Executive Legal Solicitor for Public Prosecutions File Number(s): 2015/255222 Decision under appeal Court or tribunal: District Court Date of Decision: 10 April 2017 Before: Culver DCJ File Number(s): 2015/255222

Judgment

BASTEN JA: The applicant seeks leave to appeal against sentences imposed on him by Culver DCJ in the District Court on 10 April 2017. I agree with R A Hulme J that the sentence imposed for the charge of possessing an unauthorised pistol was excessive. Subject to the further matters addressed below, I agree with R A Hulme J as to the grounds of appeal. With respect to the proposed resentencing, I agree the Court should impose an aggregate sentence and that the non-parole period should be that proposed by his Honour. However, I would impose a balance of term of one year.

The applicant had pleaded guilty in the Local Court to the drug and pistol offences and had been committed to the District Court for sentence. The other offences were before the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
The sentencing judge substantially reduced (by half) each of the terms of imprisonment from what they otherwise would have been pursuant to ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). There was no challenge to this aspect of the sentencing.
The bond imposed for the proceeds of crime offence was not the subject of complaint in this Court. Accordingly, consideration of sentencing for that offence may be put aside.

Facts

The applicant was driving on the Hume Highway at Lansvale at about 10.15am on 31 August 2015. He was alone in the car. A police officer activated warning lights but the applicant accelerated away at a speed of 95kph in a 70kph zone. There was a police pursuit for a short time before it was abandoned for safety reasons. The applicant drove a further short distance before stopping, alighting from the car and running away but he was arrested soon after.
The car was searched and police found on the driver's seat a resealable bag containing 19.04 grams of methylamphetamine of 77.5 per cent purity. Inside the car police found a piece of paper that the prosecution alleged was a drug ledger, referred to as a "tick book". There was undisputed expert evidence before the court that it was common for drug suppliers to keep records of deals and drug transactions in such a ledger.
A loaded pistol was found secreted underneath the centre console. It was a prohibited pistol within the definition of that term in s 4C of the Firearms Act 1996 (NSW) and was in working order. A detachable magazine found attached to the pistol had a capacity to hold seven .45 automatic calibre cartridges and six such cartridges were found within it.
Also in the car was $440 in cash which was the subject of the proceeds of crime offence.
The applicant was a disqualified driver. On 15 March 2013, for an offence of driving a vehicle furiously and causing bodily harm, he was disqualified for a period of three years dating from 15 October 2012.

Seriousness of the offences

The sentencing judge discussed various matters relevant to her assessment of the objective seriousness of each of the offences. Relevantly, this discussion culminated in her announcing findings that the supply offence and the pistol offence were "just under the mid-range level" and "at the mid-range level" respectively.
There is no challenge to these findings.

The applicant's personal circumstances

The applicant was aged 24 at the time of the offences and 26 at the time of sentence.
He had some matters of significance in his criminal history. Chronologically, his past offences (and when they were committed) included: February 2009: Possession of an unregistered firearm; Possession of an unauthorised firearm; and Firing a firearm in or near a public place. (Fines). September 2009: Aggravated assault with intent to rob and using corporal violence. (Imprisonment for 3 years with non-parole period of 15 months) June 2011: Use offensive weapon with intent to commit indictable offence; Drive furiously causing bodily harm; and Affray. (Imprisonment for a total of 12 months from 17 November 2012 to 16 May 2013 with disqualification from driving for 3 years from 15 October 2012) November 2014: Supply prohibited drug (6.9g of methylamphetamine). (Good behaviour bond (s 9) for 14 months imposed on 23 June 2016) 10 February 2015: Driving whilst disqualified - 1st offence. (Imprisonment for 6 months from 31 August 2015 to 29 February 2016) 24 February 2015: Two offences of driving whilst disqualified - 2nd+ offence. (Imprisonment for a total of 6 months from 10 May to 9 November 2015)
The applicant was in custody for the present offences from the time of his arrest on 31 August 2015. However, the sentences for the three previously committed disqualified driving offences ran for the first six months of that pre-sentence custody. In other words, the applicant had been in custody on remand for the present matters alone from 1 March 2016. Nevertheless, he obtained the benefit of his sentences being back-dated to 31 August 2015 without the primary judge making any reference to the fact that this would subsume the other sentences from that date.
The applicant was on bail at the time he committed the present offences; a factor which the sentencing judge regarded as contributing to his moral culpability. (ROS 10)
A psychologist's report was tendered in the sentencing proceedings. The applicant had been diagnosed with chronic post-traumatic stress disorder arising from the trauma he experienced during war in his country of birth (Croatia) which was rekindled by the experience of seeing the death of his friend in a road accident in about 2014. There were also diagnoses of anxiolytic use disorder (from the use of Xanax) and stimulant use disorder (from the use of ice and cocaine). All of these disorders were said to be in remission.
The applicant had completed the "Enough is Enough" program while on remand. He claimed to have abstained from drug use in the eight months prior to sentencing. The psychologist noted that there had been positive steps towards rehabilitation but more was required and a treatment plan was proposed. This included parole supervision with regular drug screening, attendance at Narcotics Anonymous and any counselling that might be of assistance. The judge considered that counselling would also assist in relation to the post-traumatic stress disorder and associated symptoms. (ROS 14)
The judge noted that the applicant had strong support from his family and his partner and employment was available to him upon his eventual release from custody. There was evidence to the effect that the applicant had good prospects of rehabilitation, was remorseful in relation to his offending, and had a growing insight and maturity with determination to remain crime-free. (ROS 14)
Her Honour referred to the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act and specifically mentioned the importance of general deterrence and the need to accommodate the applicant's rehabilitation. Earlier, when referring to the applicant's criminal history, she said also that "there ought be a measure of specific deterrence". (ROS 12; 17)
Special circumstances (s 44(2) of the Crimes (Sentencing Procedure) Act) were found to warrant a reduction of the non-parole proportion of the sentences to be imposed. Her Honour said: "The special circumstances are contributed to by the need for the offender to engage in rehabilitation in circumstances where rehabilitation needs have been identified. There are courses and there is treatment available for those needs and the offender has demonstrated good prospects of rehabilitation. The special circumstances are also contributed to by the circumstances of the Court engaging in sentencing for multiple offences where there will need to be a degree of concurrency and accumulation." (ROS 16)
There is no complaint about the manner in which her Honour took into account the applicant's subjective circumstances, or the findings she made except for the matter raised in Ground 5 (insufficient weight given to the promotion of the applicant's rehabilitation).

Grounds of appeal

Ten grounds of appeal were listed in a Notice of Application for Leave to Appeal filed on 2 May 2017. They were reformulated and reduced to five grounds in an amended notice.
Written submissions by counsel who appeared in the District Court were filed and they were supplemented in relation to some of the grounds by further written submissions by counsel who appeared in this Court.

Ground 1 - The sentence imposed for the charge of supply prohibited drug was manifestly excessive

In respect of the drug offence it was submitted that the starting point of 4 years 6 months with a non-parole period of 3 years for the sentence for an offence found to be below the mid-range of objective seriousness is manifestly excessive. To make good that submission, a printout from the Public Defenders' website of cases involving sentencing for supplying less than a commercial quantity of amphetamine from 1993 to 2016 was provided. No attempt was made to identify any unifying principles for sentencing in such cases: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54].
Counsel took the Court to three of the cases in the table where persons were sentenced for supplying an amphetamine-type drug in quantities similar to the quantity in the present case. In Price v R [2016] NSWCCA 29 there was a sentence of 3 years 3 months (starting point about 3 years 7 months before a 10 per cent reduction) for supplying 15.53 grams. In Tran v R [2013] NSWCCA 322 there was a sentence of 1 year 7 months (starting point about 25 months before a 25 per cent reduction) for supplying 22.05 grams. In contrast, however, in Brown v R [2013] NSWCCA 44 there was a sentence of 3 years 9 months (starting point 5 years before a 25 per cent reduction) for supplying 16.4 grams. Counsel's attention was also drawn to another case in the table; Sleiman v R [2012] NSWCCA 58 where there was a re-sentence of 3 years 9 months (starting point 6 years 3 months before a 40 per cent reduction) for supplying 21.8 grams.
By these superficial comparisons it can be seen that there are two cases which assist the applicant's contention and two which do not. It was quite an unhelpful exercise.
Counsel also provided the Court with a printout of statistics maintained by the Judicial Commission of New South Wales. They were statistics for "all offenders" in 578 cases in the seven year period to September 2016. This was unhelpful as no information was provided as to why the sentences were fixed as they were: Hili v The Queen; Jones v The Queen at 535 [48].
The subjective matters taken into account by the primary judge and her favourable findings as to the applicant's remorse and good rehabilitation prospects must be acknowledged. However, I am not persuaded that the sentence for the supply offence is manifestly excessive when regard is had to the maximum penalty; the unchallenged finding of "just under the midrange level" objective seriousness; the aggravating feature that the applicant was on bail; and the applicant's past record which denied him leniency, including an offence of supplying drugs only nine months earlier.

Ground 2 - The sentence imposed for the charge of possess unauthorised pistol was manifestly excessive

Despite this ground asserting latent error in the exercise of the sentencing discretion, two patent errors were argued in its context. They must both be rejected.
The pistol offence was one for which there is prescribed a maximum penalty of imprisonment for 14 years and there is a standard non-parole period of 4 years. As indicated earlier, the sentencing judge found that the objective seriousness of this offence was "at the midrange level". (ROS 10)
In the first written submissions, former counsel for the applicant argued that if the starting point non-parole period was 4 years (because that was the standard non-parole period and there was a finding of midrange objective seriousness) there should have been a total term of 5 years 4 months for this offence. It was submitted that because the total term, as a starting point, was 7 years, the judge must have increased the length of the sentence because of her finding of special circumstances. Counsel appearing at the hearing endeavoured to pursue this submission
It would have been fundamentally wrong if the judge had approached the assessment of sentence for the pistol offence by first determining the non-parole period and then increasing the overall term of the sentence from what it otherwise might have been as a result of finding special circumstances. Such an approach has been well-known to be wrong since the concept of "special circumstances" was introduced into sentencing legislation three decades ago with the enactment of the Sentencing Act 1989 (NSW): see, for example, R v Moffitt (1990) 20 NSWLR 114 at 134 (Badgery-Parker J); similarly, at 118C (Samuels JA) and 122A (Wood J, as his Honour then was), .
Nothing the judge said provides support for this contention and I would not lightly infer that such an egregious error occurred, particularly by a judge with much experience in the criminal jurisdiction.
In any event, there is nothing in the judge's reasoning to indicate that she adopted a sequential approach to the assessment of the non-parole period and the overall term. In my view, the reasoning gives rise to no other conclusion than that the judge approached the assessment of all components of the sentence for the pistol offence simultaneously. This is unremarkable: R v Hampton (1998) 44 NSWLR 729 at 732C; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 190 [112]. Assessing a sentence by first determining (in a provisional sense) the non-parole period, then calculating from it the balance of term by adding one-third, and only then deciding whether any adjustment is appropriate if there are "special circumstances" seems rather mechanical and perhaps even contrary to an instinctive synthesis approach: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611-612 [74]-[76].
A further argument was raised in the supplementary written submissions. It was to the effect that bearing in mind the finding of mid-range objective seriousness, it was no coincidence that the judge adopted a starting point head sentence that was exactly half of the maximum penalty and adopted a starting point for the non-parole period that was the same as the prescribed standard non-parole period.
The sentencing judge did not say anything that would support such an inference being drawn. Further, I am not prepared to assume just from the figures that she approached her onerous task in such a simplistic and erroneous way.
When counsel was pressed as to the applicant's real complaint, it was accepted that if these assertions of error in the primary judge's approach to sentencing did not prevail, it was nonetheless the applicant's contention that the sentence for the pistol offence was manifestly excessive. This was described as "the fall-back position" but in reality it seems to be the nub of the appeal. (5.7.17 at T8)
Counsel attempted to make good this submission by reference to three cases. Caution is required in relation to them because the prevailing standard non-parole period for an offence contrary to s 7(1) of the Firearms Act was three years whereas it was increased to four years on 21 August 2015 by the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 (NSW).
In Ballard v R [2011] NSWCCA 193, the offender was sentenced for possessing a rifle that had been modified to resemble a walking stick, as well as for supply (possession for the purpose of supply) of 23.05 grams of methylamphetamine. There was no evidence that the rifle was associated with the offender's drug supply. It was not loaded and nor was there any ammunition. The offence concerning the rifle was found to be at the high end of the middle of the range of objective seriousness. Some offences on a Form 1 document were taken into account. The starting point for the sentence was 6 years.
Ground 5 of the appeal asserted (in effect) that the degree of accumulation of the sentences was excessive. Harrison J (Beazley JA (as her Honour then was) and Hall J agreeing) discussed some authorities on the subject, including cases in which it had been said that there needed to be some accumulation between sentences for drug supply and firearm offences. However, his Honour concluded that the degree of accumulation (2 years) was excessive. He observed that the firearm offence was "deserving of recognition as a discrete and separate act of criminality" but that could be adequately reflected in accumulation by 1 year. The individual sentences (4 years for the firearm offence and 2 years 6 months for the drug supply) were otherwise undisturbed.
This case is not a straightforward comparator. Aside from the lower prevailing standard non-parole period, there were three offences on a Form 1 taken into account in sentencing for the firearm offence: possessing a shortened firearm (the same firearm), possessing prohibited weapon (a homemade mace) and possessing a prohibited firearm (a non-functioning paint ball pistol). Precisely how they impacted upon the sentence for the primary offence is unknowable but it was probably only to a modest extent.
In Tran v R [2010] NSWCCA 183, on re-sentence there was a starting point of 5 years 8 months, reduced to 4 years 3 months, for an offence of possession of a loaded pistol. The offender was found in possession of this item when he was in a car as "a member of a group of heavily armed young men". The objective seriousness of the offence was found to be significantly above the middle of the range. An offence was taken into account but it was relatively minor in the circumstances and likely had little or no impact upon the sentence.
The respondent to the Crown appeal in Regina v XX [2009] NSWCCA 115; 195 A Crim R 38 was sentenced for two very serious drug supply offences and two offences of possessing a prohibited firearm (a self-loading rifle and a revolver).
All of the drugs and firearms were found in a garage. The firearms were unloaded but there were two boxes of ammunition stored with them. The revolver had a silencer attached. The primary judge found that the firearms were connected with the respondent's drug supply business.
Error was established and the respondent was re-sentenced. One of the errors was the imposition of wholly concurrent sentences, including for the firearms offences. A finding that the revolver offence was "in the mid-range of seriousness" was regarded as "a generous finding given that it was in the possession of a person involved in drug dealing" but it was not challenged by the Crown and so it was accepted for the purposes of re-sentencing.
On re-sentence, a combined discount of 60 per cent allowed by the primary judge was maintained. For the revolver offence the Court imposed a term of imprisonment for 2 years 4 months with a non-parole period of 1 year 8 months. The starting point must therefore have been 6 years 8 months.
This case predated the abolition of the concept of double jeopardy in Crown appeals by the insertion on 24 September 2009 of s 68A in the Crimes (Appeal and Review) Act 2001 (NSW).

Consideration

The impression derived from these cases is that the starting point of 7 years for the firearm sentence in the present case is a high one. However, for more fundamental reasons than by reference to these cases I am satisfied that it is manifestly excessive. A sentence of 7 years against a maximum penalty of 14 years for an offence found to be in the middle of the range of objective seriousness is difficult to accept when it is acknowledged that such a finding does not lead to the arithmetical consequence that the sentence should be in the middle of the range between zero and the maximum.
Even if 7 years was proportionate to the objective seriousness of the offence, there also needs to be brought into account that the applicant had some subjective matters that were clearly accepted by the primary judge as warranting some mitigation of penalty. The applicant was accepted to be remorseful; he was growing in maturity and insight as to his past offending; he had good prospects of rehabilitation; and he had pro-social supports and employment prospects. The assessment of sentence of 7 years did not reflect any of these matters.
This ground should be upheld.

Grounds 3 to 5

It follows from the above that there is no utility in determining the remaining grounds of appeal. They were quite unmeritorious in any event.

Re-sentencing

It is necessary for the Court to exercise the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 617-8 [42]-43. In doing so, however, it is open to the Court to act upon findings made by the primary judge which were not challenged by the applicant: Hitchcock v R [2016] NSWCCA 226 at [29]; Mundine v R [2017] NSWCCA 97 at [21]; Edwards v R [2017] NSWCCA 160 at [47]; and Trejos v R [2017] NSWCCA 122 at [61].
The judge's finding that the applicant's moral culpability was increased by virtue of the offences being committed while he was on bail was appropriate and has not been brought into question. Her findings as to the objective seriousness of the drug and pistol offences were not challenged either; nor could they be given that they were consistent with the submissions that had been made to her by the applicant's counsel. (e.g. POS 21.45; 23.3)
That finding in relation to the pistol offence was undoubtedly open to her Honour in circumstances where the pistol was loaded with six rounds of ammunition in the context of the applicant being in possession of drugs with a high purity, although in a relatively modest quantity, for the purpose of supply. As to the seriousness of the firearms offence in association with drug supply, see: R v Amurao [2005] NSWCCA 32 at [69]; Luu v R [2008] NSWCCA 285 at [32]; R v AZ [2011] NSWCCA 43; 205 A Crim R 222 at [76].
It is often stated, but bears emphasising, that general deterrence is a particularly important aspect in sentencing both for drug supply and for firearms offences: see, for example, Regina v Ha [2004] NSWCCA 386; R v Krstic [2005] NSWCCA 391 at [14]; Thalari v R (2009) 75 NSWLR 307 at [93]; and R v AZ at [73].
The findings made as to subjective matters were also not challenged except by some further evidence adduced by the Crown that it contended had a bearing upon the applicant's prospects of rehabilitation. It is to be recalled that the primary judge found that such prospects were "good".
On instructions, former counsel for the applicant told the primary judge that his client had "been clean for eight months" (POS 30.41); in other words he had not used drugs for that period. The sentencing judge made reference to this. (ROS 13). It may well have been a factor in her assessment that the applicant had good prospects of rehabilitation. However, the evidence adduced by the Crown in this Court showed that in the week following sentencing the applicant had committed three correctional disciplinary offences. They included possession of a drug on 15 April 2017 and failing to supply a urine sample on 16 April 2017.
The applicant pleaded guilty to each of these offences and received various sanctions. However, this Court does not know the full details of the incidents. In these circumstances, any qualification of the judge's finding, if any, could only be minimally against the applicant's interests.
It was accepted by the parties that this Court would allow for a reduction of the sentences it otherwise would impose by the same margin as allowed by the sentencing judge (50%).
One matter that was controversial is the degree to which the sentences were partially accumulated.
Counsel abandoned a complaint raised in the original written submissions about there being accumulation by one month of the sentence for the police pursuit offence upon the sentence for the disqualified driving offence. It was, however, contended that the accumulation of the sentence for the pistol offence upon that for the drug offence was excessive. However, when it was pointed out to counsel that the effect of the partial accumulation was that the applicant would only serve a period of four months that was solely referable to the drug offence, or three months when some pre-existing sentences for three disqualified driving offences were taken into account, she accepted that there could be no quarrel with the observation that it was "very modest". (5.7.17 at T15.33)
Having regard to what was said in Ballard v R and Tran v R and the authorities referred to therein, I am of the view that the degree of accumulation of the sentences for the pistol and drug offences must be greater than that ordered at first instance. It is necessary to bear in mind that a factor that made the pistol offence more serious was the fact that it was possessed by the applicant in a drug supply context. Nevertheless, each of these offences had their own unique criminality that cannot be adequately reflected by sentences that are accumulated to only a minor degree.
The sentencing judge opted to impose individual sentences rather than to take advantage of the aggregate sentencing provisions that were inserted in to the Crimes (Sentencing Procedure) Act in 2011. That was a choice available to her but it would have simplified the process quite significantly if she had done otherwise, particularly when giving an ex tempore judgment. It would also have focussed attention in any appeal upon the most practical and important issue: whether the overall sentence was an appropriate reflection of all of the objective and subjective facts and circumstances of the case.
Imposing individual sentences and specifying exact terms of accumulation leaves the door open for all sorts of arguments about technical issues that really have no bearing upon whether the overall outcome is appropriate and just. Many of the points raised in this case, based upon supposed inference rather than what the judge actually said, provided an unnecessary hindrance rather than assistance for the Court in assessing whether there had been any error in the exercise of the sentencing discretion.
There was no challenge to the sentences imposed for the disqualified driving and police pursuit offences and, in any event, my own assessment is that the sentences imposed for them were appropriate.
After allowing for the substantial reduction adopted by the sentencing judge, my assessment is that the sentence for the drug offence should be the same, which is 2 years 3 months. The sentence for the pistol offence should be 3 years.
While it could well be that the aggregate sentence this Court imposes could be partially or completely accumulated upon the pre-existing sentence imposed in the Local Court, the Crown accepted that this Court should not do so. That concession, favourable to the applicant, should be accepted. (5.7.17 at T21)
The finding of special circumstances should be maintained so as to allow for a longer period of supervised parole to promote the applicant's further rehabilitation. No further adjustment is required on account of the pre-existing sentences.

Orders

I propose the following orders: 1. Grant leave to appeal against sentence and allow the appeal. 2. Quash the sentences imposed in the District Court for the offences of supplying a prohibited drug, unauthorised possession of a prohibited pistol, driving whilst disqualified and police pursuit. 3. In lieu, sentence the applicant to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months dating from 31 August 2015. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 27 February 2018.

Endnotes

As amended to reflect the reasoning in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [24], [25].
Judgment on sentence, 10/04/17, p 10.
Judgment on sentence, p 19.

Amendments 17 July 2017 - [10] Correction of inadvertent reference to "3 years" rather than "3 months" 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: 17 July 2017

Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015(NSW)

Sentencing Act 1989(NSW)

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