Marracos v R

Court of Criminal Appeal (NSW)|2008-08-21|Before: Basten JA, Hislop J, Price J

JUDGMENT OF: Basten JA at 1; Hislop J at 2; Price J at 29

DECISION: (1) Grant leave to appeal in respect of the sentences imposed with respect to counts 3 and 4; (2) In respect of each of those sentences, allow the appeal and quash the sentence; (3) In lieu thereof, sentence the applicant: (a) in respect of Count 3 to a period of imprisonment of 12 months to date from 16 September 2008 and expire on 15 September 2009; (b) in respect of Count 4 to imprisonment for a non parole period of 18 months to date from 16 January 2009 and expire on 15 July 2010, with a balance of term of 18 months commencing on 16 July 2010 and expiring on 15 January 2012; (4) The earliest date upon which the applicant will be eligible for parole will be 15 July 2010.

R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 R v Davies [2004] NSWCCA 319 Vu v R [2006] NSWCCA 188 CASES CITED : Pearce v The Queen [1998] HCA 57 R v Tobar [2004] NSWCCA 391 Mulato v R [2006] NSWCCA 282 R v Newell [2004] NSWCCA 183 R v El Masri [2005] NSWCCA 167

COUNSEL: H. Dhanji (Applicant) J. Girdham (Crown)

SOLICITORS: Martin Ricci Solicitors (Applicant) Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2007/4390

BASTEN JA HISLOP J PRICE J

Wednesday 19 November 2008 Frank MARRACOS v R Judgment 1 BASTEN JA: I agree with Hislop J. 2 HISLOP J: On 19 July 2007 the applicant pleaded guilty in the Local Court to the following counts:

(1) On 3 May 2006 he did possess a substance, being a controlled drug, namely MDMA, contrary to s 308.1(1) of the Criminal Code Act , 1995 (Cth). The maximum penalty for such an offence is two years imprisonment (Count 1).

(2) Between 7 April 2006 and 3 May 2006 he did possess equipment and instructions for the commercial manufacture of controlled drugs, in breach of s 308.4 of the Criminal Code Act 1995 (Cth). The maximum penalty for such an offence is seven years imprisonment (Count 2).

(3) On 3 May 2006 he did possess a prohibited weapon, namely an extendable baton, without a permit, contrary to the Weapons Prohibition Act , 1998, s 7(1). The maximum penalty for such an offence is 14 years imprisonment (Count 3).

(4) On 3 May 2006 he did possess a prohibited weapon, namely a .45 calibre self loading pistol, without a permit, contrary to the Firearms Act , 1996, s 7(1). The maximum penalty for such an offence is 14 years imprisonment. A standard non parole period of three years is applicable to this offence (Count 4). 3 The applicant was committed for sentence to the District Court where he maintained those pleas. On 28 September 2007 he was sentenced as follows:

Count 1: Imprisonment for one month to date from 28 September 2007 and expire on 27 October 2007.

Count 2: Imprisonment for 16 months to date from 28 September 2007 and expire on 27 January 2009.

Count 3: Imprisonment for 18 months to date from 16 September 2008 and expire on 15 March 2010.

Count 4: Imprisonment for a non parole period of 18 months and a total term of 4 years both to date from 16 March 2009. 4 The applicant had served 12 days in custody before being released on bail, a fact which her Honour said she had taken into account on count 3. The effective overall sentence was thus a non parole period of two years eleven months eighteen days, with an effective head sentence of five years five months and eighteen days. 5 The applicant has sought leave to appeal against the sentences imposed upon him in respect of counts 3 and 4 on the grounds that: "1. The learned sentencing Judge erred by failing to properly apply Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, 1999 (the standard non parole period provisions) in sentencing the Applicant with respect to the offence against s 7(1) Firearms Act, 1996. 2. The sentencing Judge erred in failing to properly consider the range of offences covered by s 7(1) Firearms Act, in determining that the offence was in the mid range. 3. The sentence imposed with respect to the offence against s 7(1) Weapons Prohibition Act, is, in all the circumstances, manifestly excessive both in relation to the sentence itself and as to its impact on the total effective sentence. 4. The sentence imposed with respect to the offence against s 7(1) Firearms Act, is, in all the circumstances, manifestly excessive both in relation to the sentence itself and as to its impact on the total effective sentence." 6 Her Honour found:

(a) The applicant, between November 2005 and May 2006, engaged in a sophisticated international enterprise to manufacture LSD in Australia. The applicant's role was as a person who was able to organise and facilitate matters in Sydney. He was not the principal, but played an important part in this criminal enterprise. His involvement was motivated by greed.

(b) The loaded Colt .45 calibre semi-automatic handgun was found in the applicant's house. Its possession has no innocent explanation and must be connected with proposed criminal activity. Here, no doubt, to ensure the offender's safety while he was engaged in this drug matter.

(d) The applicant was born in Iraq in October 1977. He did not give evidence on sentence but the court had the assistance of a pre sentence report and a psychologist's report. He had suffered a disrupted childhood, his parents having been imprisoned when he was six and he was then raised by a grandmother to age 13. Three of his uncles were executed in Iraq. He fled with his family from Iraq and immigrated to Australia via a refugee camp. He had overcome language difficulties and a lack of formal education to find employment and, at the time of the offences, ran a restaurant at Parramatta. The psychologist found he had struggled with symptoms of post traumatic stress disorder for much of his life. The applicant has used drugs in the past but does not now have any significant substance abuse problems. He has good prospects for rehabilitation. He had no prior criminal convictions, which fact entitled him to some leniency.

(e) Each sentence should be reduced by 20% for the utilitarian value of the guilty pleas.

Ground 1: The learned sentencing Judge erred by failing to properly apply Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, 1999 (the standard non parole period provisions) in sentencing the Applicant with respect to the offence against s 7(1) Firearms Act, 1996 7 Part 4 Div 1A of the Crimes (Sentencing Procedure) Act, 1999 provides as follows: " 54A (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B (1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. (5) The failure of a court to comply with this section does not invalidate the sentence." 8 The standard non parole periods in the Table must be taken as having been intended for a middle range case where the offender was convicted after trial (R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 at [68]). Where the standard non parole period is not directly applicable, eg, where, as here, there is a plea of guilty, the standard non parole period serves a role as a reference point - R v Davies [2004] NSWCCA 319 at [6], Vu v R [2006] NSWCCA 188 at [52]. 9 Her Honour, as required by Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610, sentenced the applicant separately in respect of each offence. In respect of the pistol offence her Honour imposed a total sentence of four years imprisonment with a non parole period of 18 months. 10 Her Honour in her remarks on sentence observed: "Finally, before I proceed to sentence, I come to the question of whether it is appropriate to impose the standard non parole period for the firearms offence. In my view, the fact the pistol was loaded with a number of bullets puts the offence in the mid range of objective seriousness even though the weapon was not being carried in a public place by the offender. However, I have come to the conclusion that the non parole period should be less than imprisonment for three years. My reasons for coming to this conclusion are firstly the plea of guilty, the fact that this is the offender's first conviction at age 30 and my finding that he has good prospects for rehabilitation. I find special circumstances, because of the partial accumulation of sentences and that is another reason for declining to impose the standard non parole period."

Her Honour then proceeded to pronounce sentence including sentencing the applicant to a total term of four years on count 4. No other specific reference was made in the remarks on sentence to that term or how it was calculated. 11 The applicant, in his written submissions, submitted "Each of the reasons for not imposing the standard non parole period is a matter relevant to the mitigation of penalty. Despite this a sentence of 4 years was imposed. Application of the statutory ratio to this figure would ordinarily yield a non parole period of three years. That is, precisely the standard non parole period. Thus, despite an entitlement to a discount for his plea, and consideration of other matters in mitigation, the applicant's sentence is, prior to the adjustment for special circumstances, equivalent to that which would result from the imposition of the standard non parole period" or "Viewed another way, the starting point for the sentence prior to the application of the discount for the plea of guilty was 5 years (ie 5 years less 20 percent equals 4 years). Application of the statutory ratio to this figure yields a starting point 3 years 9 months. That is, despite taking into account only matters which justified a non parole period lower than the standard non parole period, her Honour's starting point was a sentence with a non parole period higher than the standard non parole period." 12 I accept the applicant's submissions that there is an apparent disparity between the head sentence and assumed starting point and the non parole period. The disparity cannot be explained by the finding of special circumstances as, in the event special circumstances are found, effect is given to that finding by a reduction of the minimum term and not by an extension of the additional term - R v Tobar [2004] NSWCCA 391 [36]. 13 In my opinion, her Honour did not err in her consideration of the guideline provided by the standard non parole period. She concluded the offence was in the mid range of objective seriousness but that the non parole period should be less than the standard non parole period of three years and, consistently with s 54B(4) of the Crimes (Sentencing Procedure) Act, 1999, recorded her reasons for reducing the standard non parole period. In my opinion, for reasons discussed in respect of ground 4, the non parole period of 18 months should remain. 14 However, I accept the applicant's submission that her Honour erred in imposing a head sentence of four years. In my opinion, consistently with her Honour's findings and reflective of the requirements of s 44(2) of the Crimes (Sentencing Procedure) Act, 1999 a balance of term of 18 months is appropriate and should have been imposed.

Ground 2: The sentencing Judge erred in failing to properly consider the range of offences covered by s 7(1) Firearms Act, in determining that the offence was in the mid range 15 The Firearms Act, 1996, s 7(1) provides: "(1) A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit." 16 A prohibited firearm is defined in s 4 and means a firearm prescribed in Sch 1 of the Firearms Act, 1996. The firearms there described range from a machine gun, rifle, shotgun down to replica firearms. A prohibited pistol is defined in s 4C(1). 17 The applicant submitted that whether a particular offence was mid range or not could not be determined without a proper appreciation of the offences covered by the relevant legislation. Her Honour's sentencing discretion had miscarried as she had erred by not taking into account relevant factors, namely:

(a) that s 7(1) creates the offences of both possessing and using a prohibited firearm or pistol and that the offence of possessing was necessarily less serious than the offence of using as it was necessary to possess the firearm in order to use it, and

(b) the range of firearms to which the section applied included firearms which were potentially more dangerous than a pistol.

It was submitted that when these matters were taken into account the proper conclusion was that the offence was less than mid range. 18 I do not accept this submission as:

(a) There is no evidence her Honour was not aware of, or did not inform herself of, the terms and ambit of s 7(1). In the absence of such evidence, I would not infer her Honour did not adequately take such matters into account in determining that the offence was in the mid range.

(b) As observed in Way at [81] "It would neither be necessary, nor productive, in formulating an understanding of the mid range offence for which the standard non parole period is set, to engage in an exercise of imagination as to the entire range of circumstances that might give rise to the offence."

(c) The characterisation of the degree of objective seriousness of an offence is classically the role of the sentencing judge. This court is very slow to set aside the judgment made by a first instance judge exercising a broadly based discretion - Mulato v R [2006] NSWCCA 282 at [37], [45] and [46]. In my opinion, it was open to her Honour to characterise the offence as in the middle of the range of objective seriousness. 19 The applicant also submitted that it was "relevant to consider that the applicant's mental state was causally connected to the commission of the offence in that the pistol provided him with a 'sense of security' as a consequence of his longstanding feelings of apprehension over the years." This submission was based upon a comment made by the applicant to a psychologist and recorded in the psychologist's report. The applicant did not give evidence at the sentencing hearing. Her Honour found that the possession of the pistol was connected with the proposed crime activity. I reject this submission.

Ground 3 : The sentence imposed with respect to the offence against s 7(1) Weapons Prohibition Act, is, in all the circumstances, manifestly excessive both in relation to the sentence itself and as to its impact on the total effective sentence 20 The Weapons Prohibition Act, 1998, s 7(1) provides: "A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit." 21 The definition of "prohibited weapon" is contained in s 6 of the Weapons Prohibition Act and means anything prescribed in Sch 1. Schedule 1 includes a wide range of weapons extending from bombs, grenades, rockets and missiles to knives, crossbows, slingshots, knuckledusters and a studded glove. 22 The applicant submitted the sentence of 18 months was manifestly excessive because of the comparison between this weapon and other weapons included in the range of items in the schedule, that the section related to possession and use, that it was high by reference to the NSW Judicial Commission statistics and because, but for the other matters for which he was sentenced, he would ordinarily have expected to be dealt with summarily in the Local Court and her Honour failed to refer to this in her remarks on sentence. 23 However, the baton was a dangerous weapon, particularly as it was designed to be concealed upon the person. In R v Newell [2004] NSWCCA 183 at [45] an offender received a sentence of 18 months imprisonment in relation to possession of a baton. The sentence was upheld in this court. The Judicial Commission statistics were based on four cases only and in respect of those four cases the non parole periods/fixed terms were six months (one offence), twelve months (two offences), and eighteen months (one offence). A court, when dealing on indictment with a matter which is capable of summary disposal, is not bound to have regard to that fact - R v El Masri [2005] NSWCCA 167 at [29]-[30]. 24 However, as her Honour observed, the baton was, for obvious reasons, "a less fearsome weapon" than the pistol. Nevertheless, her Honour imposed a period of mandatory imprisonment equal to the period fixed in relation to the firearm offence. Whilst it is true that the firearm offence and the weapons offence were created by different statutes, each carried the same maximum penalty and, in my opinion, proportionality requires that there be some disparity in the terms of the respective periods of mandatory imprisonment. 25 In my opinion, the appropriate penalty for the offence under the Weapons Prohibition Act, is a fixed term of 12 months imprisonment. As the sentence imposed was excessive, it is appropriate to give effect to the reduction by reducing the effective term proportionately. Accordingly, the appropriate period of accumulation is four months (in lieu of six months).

Ground 4 : The sentence imposed with respect to the offence against s 7(1) Firearms Act, is, in all the circumstances, manifestly excessive both in relation to the sentence itself and as to its impact on the total effective sentence 26 In my opinion, there is no substance in the submission that a non parole period of 18 months for the firearm offence is manifestly excessive both in relation to the sentence itself and as to its impact on the total effective sentence as:

(a) The pistol was a lethal weapon capable of killing or wounding one or a number of persons. It was in working order and fully loaded. It was readily concealable upon the person. As her Honour found, possession of the firearm was a very serious offence; the legislature had increased the maximum penalty for firearms offences to reflect the community's abhorrence at the prevalence of such weapons. The fact the pistol was loaded with six bullets was an aggravating circumstance.

(b) The NSW Judicial Commission statistics revealed, on a base of six cases, that a non parole period/fixed term of 18 months was ordered in 33 percent of cases and a non parole period/fixed term of 24 months in 17 percent of the cases.

(c) Defence counsel at the sentencing hearing had accepted that "when somebody pleads guilty and falls to be sentenced for a pistol, that a non parole period in the vicinity of 12 to 18 months seems unexceptional." 27 Accordingly, I reject this submission. I have earlier considered the appropriateness of the parole period in respect of this count.

Grant leave to appeal in respect of the sentences imposed with respect to counts 3 and 4;

In respect of each of those sentences, allow the appeal and quash the sentence;

In lieu thereof, sentence the applicant: (a) in respect of Count 3 to a period of imprisonment of 12 months to date from 16 September 2008 and expire on 15 September 2009. (b) in respect of Count 4 to imprisonment for a non parole period of 18 months to date from 16 January 2009 and expire on 15 July 2010, with a balance of term of 18 months commencing on 16 July 2010 and expiring on 15 January 2012.

The earliest date upon which the applicant will be eligible for parole will be 15 July 2010. 29 PRICE J: I agree with Hislop J. **********

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