Miletic v R

Court of Criminal Appeal (NSW)|2008-04-10|Before: Mason P, James J, Hoeben J

Background to offences 11 At the relevant time the applicant had been living at 4 De Havilland Crescent, Raby with the co-offender, Deborah Kervin. For the previous ten years the applicant had worked as a self-employed roof tiler earning between $2000 - $3000 per fortnight. 12 In April 2006 Operation "Ankana" was commenced by the Macquarie Fields detectives to investigate the criminal activities of the applicant and the co-offender. During this investigation, electronic surveillance was conducted on the premises at 4 De Havilland Crescent, Raby. 13 The surveillance recorded illicit drug supply transactions of various quantities. It also recorded conversations between the applicant and the co-offender concerning their involvement in the supply of prohibited drugs. Those conversations concerned the supply and sourcing of prohibited drugs and referred to monies paid and monies owed in relation to that supply. The surveillance recorded the actions of the applicant and co-offender in weighing, preparing and packaging the prohibited drugs for distribution. 14 The applicant and the co-offender were de facto partners and had been in a relationship for about 6-8 months before their arrest. The property at De Havilland Crescent, Raby was leased in the name of the co-offender. Generally customers would come to the house to purchase the drugs. Customers usually negotiated the price directly with the applicant, whereas the co-offender was responsible for fetching and packaging the prohibited drugs. 15 Each of the offences was recorded by electronic surveillance. On 31 May 2006 the applicant was arrested during a vehicle stop. Shortly thereafter a search warrant was executed at 4 De Havilland Crescent, Raby. During a search of the premises, numerous bags of methylamphetamine of various weights were located in the freezer, in the garage and in a jewellery box in the main bedroom. The total gross weight of the methylamphetamine was 23.77g. Also located during the search were plastic resealable bags containing various weights of cannabis. The gross total weight of the cannabis was 68.5g. During the search three different containers of anabolic steroids were located. The search revealed indicia of drug supply comprising a large quantity of resealable bags, a knife used by the applicant in the preparation of the methylamphetamine and digital scales.

Subjective matters 16 The applicant was born on 25 March 1977 and had almost turned 30 at the time of sentencing. He did not give evidence in the sentencing proceedings. As his Honour said in the sentencing proceedings, very little was known about the applicant. 17 The applicant had a criminal record. In 1996 he was placed on a recognisance for a number of dishonesty and firearm offences, as well as offences of possessing a prohibited drug and possessing a prescribed restricted substance. In July 1998 he was fined for a low range PCA offence and in December 1998 was placed on a recognisance for being carried in a conveyance taken without the consent of the owner. In 2000 the applicant was dealt with for offences of common assault and in 2001 he was given a community service order for two counts of assaulting a police officer. In 2002 he was fined for the use of an unregistered and uninsured motor vehicle and for driving while his licence was suspended. In 2003 he was placed on a bond for assault. In February 2004 he received a community service order for two offences of common assault and was fined for the use of an unregistered and uninsured motor vehicle and for driving while disqualified. In September 2004 he received a community service order for contravening a domestic violence order. 18 Tendered on the applicant's behalf during the sentencing proceedings was a letter from William Booth House which indicated that the applicant had been assessed as suitable for admission to the Salvation Army Bridge Program. His Honour inferred from that document and supporting material that the applicant had a drug problem.

Remarks on sentence 19 Having reviewed the facts, his Honour concluded that each of the transactions which gave rise to the offences was relatively small. His Honour found that there was no evidence that the applicant operated as part of a larger network. He was satisfied that the applicant and the co-offender were conducting a small scale drug supply enterprise from their home which involved small quantities. 20 When considering the objective seriousness of the offences his Honour noted that the trafficable quantity of methylamphetamine is 3 grams, the indictable quantity is 5 grams and that the commercial quantity is 250 grams. In relation to count 10, ie possessing 23.77 grams of methylamphetamine for the purposes of supply, his Honour noted that this drug was found in 18 bags when the Raby premises were searched on 31 May. While his Honour accepted that the quantity of drugs found was relatively small by comparison with what constituted a commercial quantity, it was still significantly greater than both the trafficable and indictable quantities specified in the legislation. 21 His Honour concluded that because of his prior criminal record the applicant did not have the benefit of good character. His Honour did note that there were no prior offences of supplying drugs in that criminal record. While the evidence suggested that the applicant had a drug problem, it was not the applicant's case that the offences were committed to fund his habit. In view of the limited evidence, his Honour was not able to assess the prospects of the applicant's rehabilitation and the likelihood of his re-offending. On the evidence available his Honour was not optimistic about those matters. Apart from the pleas of guilty and the willingness to participate in rehabilitation programs there was no evidence of contrition. 22 His Honour summed up his conclusions in relation to the offences as follows: "In the court's view, [for] the offences involving cannabis, apart from the one on 23 May that was the subject of the committal for sentence, non-custodial sentences would have been appropriate. In the court's view, the other matters call for custodial sentences. In these circumstances it is appropriate, therefore, for relatively short custodial sentences to be imposed for the offences involving cannabis that would otherwise not have attracted a custodial sentence. The court considered totality. Having done so, it came to the view that it requires an accumulation of the sentences. Because of that accumulation and the absence of a custodial sentence in the past, the court found special circumstances". (ROS 5-6) Appeal Ground of Appeal 1 - The learned sentencing judge erred in determining that the sentences for the count of ongoing supply and the count of supplying 23.77 grams of methylamphetamine should be wholly cumulative 23 The applicant accepted that whether or not to accumulate sentences imposed for multiple offences is ultimately an exercise of discretion by the sentencing judge. Nevertheless that exercise of discretion had to be made in accordance with principle (R v Hammoud (2002) 118 A Crim R 66 at [7]). 24 The applicant submitted that his Honour had wrongly exercised his discretion on the question of accumulation in that he had failed to have adequate regard to the features which were common to the two offences. In that respect his Honour had failed to carry out the process of reasoning recommended in R v Myers [2002] NSWCCA 162 at [34]: " Pearce required that certain things be considered, when imposing sentence and that they be considered in a particular order: - First, each offence must be considered separately, and an appropriate sentence determined. - Secondly, consideration must be given as to whether the sentences imposed should be made concurrent or cumulative (or partially one or the other). It will be appropriate, for instance, to make sentences for offences concurrent where, although separate, they are substantially contemporaneous and connected. - Thirdly, the principle of totality must be considered. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved. The mechanism of making some sentences cumulative, and others concurrent (or partly so), may be used where, as often happens, and has happened in this case, the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence." (Kirby J)

It should be noted that R v Myers was a decision by a bench comprising two judges. 25 The applicant submitted that not only had the sentencing judge failed to consider the second step in that process of reasoning but he had not given any reason why the two sentences should be cumulative. Had his Honour taken this step and considered that question, he would have concluded that the circumstances of the offending behaviour in relation to the charge of ongoing supply and in relation to the charge of supply, significantly overlapped pointing strongly towards partial concurrence of those sentences. 26 In considering this ground of appeal, one needs to have regard not just to the sentences on which the appeal is focused, but to the whole of the sentences imposed by his Honour. It needs to be kept in mind that the sentences imposed for counts 2 - 5 and 7 - 9 were wholly concurrent and that there was partial concurrency between the sentences imposed for counts 6 and 1. It is against that background that the cumulation of the sentences passed in respect of counts 1 and 10 needs to be considered. 27 The nature of the offending is relevant. Although count 1 and count 10 were part of an ongoing business of drug supply, they remain separate and quite serious offences. Count 1 (ongoing supply) related to seven actual instances of supply which had taken place between 11 and 31 May 2006 whereas count 10 (deemed supply) related to seized bags of prohibited drugs of different weights, amounting to 23.77 grams, which had been prepared for later supply. 28 In relation to the extract from Myers, relied upon by the applicant, I regret that I cannot agree with Kirby J that Pearce v R (1998) 194 CLR 610 requires that concurrency and cumulation need to be considered prior to and separately from totality. I find it difficult to see how cumulation and concurrency can be considered separately from totality. The relevant statement from Pearce is at 624: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."

This in terms does not mandate the sequence of reasoning in Myers . 29 This issue was recently discussed R v MMK [2006] NSWCCA 272 where the Court said: "11 One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616. 12 In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) "... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ..." 13 In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality." 30 While it is clear that his Honour did not state specifically why he had decided to cumulate the sentences passed in respect of counts 1 and 10, it is clear from the passage quoted in [22] that having considered the individual sentences it was the principle of totality which led his Honour to cumulate the sentences for those offences. Quite clearly his Honour was of the view that no lesser sentence would be appropriate. While his Honour's reasoning is condensed, it is clear that he had regard to concurrency, cumulation and totality when formulating the sentence. 31 His Honour's approach is fully consistent with MMK and the observations in R v Wheeler [2000] NSWCCA 34 at [34] - [37]: "34 The correct application to such a case as the present one of the principles established by the decision in Pearce is not by any means a simple matter. Two things not necessarily reconcilable, if indeed reconcilable at all, have to be held in a fair overall balance. 35 One of them is the consideration conventionally referred to in the Courts as the principle of totality. That is to say, the principle that accepts the need, in a case of multiple offences, to adopt an approach which is more discriminating than the approach of simply fixing individual sentences, and then simply aggregating the individual sentences so as to reach a result, which such a process almost inevitably produces, of a truly enormous head sentence. 36 The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose. 37 It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour." (Sully J) 32 Taking into account the structure and combined effect of all of the sentences, I am not persuaded that his Honour's sentencing discretion miscarried. In particular I am not persuaded that his Honour failed to carry out the process of reasoning mandated in Pearce and failed to properly consider whether the sentences imposed in respect of counts 1 and 10 should be partially concurrent. On the contrary, it seems to me that his Honour did follow that process of reasoning and concluded that the principle of totality required the level of cumulation which is reflected by the sentences passed. This ground of appeal has not been made out.

Ground of Appeal 2 - The learned sentencing judge erred in that he sentenced the appeal to a markedly more excessive sentence when compared to his co-offender Deborah Kervin such that, even giving due allowance for their differing antecedents, personal circumstances and mitigating factors, it gives rise to a justifiable sense of grievance. 33 The applicant submitted that the discrepancy in his sentencing when compared with that of the co-offender was so marked as to give rise to a justifiable sense of grievance on his part. In making that submission, the applicant accepted that the test to be applied was an objective one and that the disparity must be "marked" for the principle to apply. 34 The applicant accepted that there were differences identified by his Honour in the level of criminality between the applicant and the co-offender, that they had differing antecedents, differing personal circumstances and that there were significant mitigating factors operating in favour of the co-offender. Even allowing for those considerations, the applicant submitted that a reasonable person viewing the totality of the facts would still regard the resulting disparity between the sentences as unjustifiable. That being so, the sense of grievance felt by the applicant was a legitimate one requiring this Court to intervene. 35 On behalf of the applicant it was submitted that the total sentence for the co-offender was less than half that of the applicant and that the non-parole period was less than a third. In addition the co-offender had the benefit of serving her sentence by way of periodic detention. The difference between the two sentences could not, objectively, be justified. 36 The applicant submitted that while the co-offender's sentence could be considered to be lenient and towards the bottom end of the range, it was not manifestly inadequate so as to lead to the conclusion that the applicant's sense of grievance was not a justifiable one. In that regard the Crown did not make a submission to the contrary. 37 It is clear that his Honour was conscious of the issue of parity when sentencing the co-offender. He set out in considerable detail the differences between them, both in relation to criminality and circumstances. 38 It was common ground that the following differences in criminality were identified by his Honour. The offence of ongoing supply by the applicant involved more individual deals and the Form 1 included four additional matters. The applicant was already running his business of supplying prohibited drugs before he met the co-offender and would have continued to do so even if he had not involved her. 39 The co-offender was the junior partner in the enterprise and the applicant was the moving force and main participant in it. The co-offender received very limited rewards in the form of petrol money and some cannabis. The co-offender's role was not crucial to the ongoing success of the enterprise. The co-offender had tried to end the enterprise but was never able to do so. 40 In relation to personal circumstances and mitigating factors, the difference between the applicant and the co-offender was even more marked. The co-offender had been involved in a motorbike accident in which she had suffered serious injuries. Her involvement in the enterprise was in part motivated by her need for cannabis as a form of analgesia and for pain management. The co-offender had a history of abusive relationships before becoming involved with the applicant, who unlike her earlier partners was not abusive. Because of this and her loyalty to the applicant she did not have the resolve to insist that he leave even though she knew that what was occurring was wrong. The co-offender had the benefit of prior good character and was found by the judge to have good prospects for rehabilitation. 41 By way of contrast, the applicant had almost no favourable subjective features and the court could not be optimistic about his prospects of rehabilitation and not re-offending. His motivation for engaging in the enterprise was not explained. 42 Finally, the co-offender had the benefit not only of a 25% discount for her early plea of guilty (as did the applicant) but an unquantified further discount because of her genuine remorse and the steps she had taken since the offences to limit her use of cannabis. 43 It is against that background that the sentences need to be considered, ie for the applicant a non-parole period of 3 years with a balance of term of 1½ years and for the co-offender, a non-parole period of 10 months with a balance of term of 10 months. In comparing sentences, it is important not to elide the concept of how the sentences were to be served. The two concepts are quite distinct. 44 The application of the parity principle requires that like should be treated alike and that where there are relevant differences, due allowance should be made for them (Postiglione v The Queen (1997) 189 CLR 295). The essence of the principle is that any discrepancy in sentencing should be justifiable. 45 Applying that approach I am not persuaded that a reasonable mind looking objectively at the sentences imposed would conclude that the applicant has a justifiable sense of grievance because of the length of sentence imposed on him. This is particularly so when regard is had to the significant differences in criminality and subjective circumstances between the applicant and the co-offender. 46 In relation to the separate question of how the sentence was to be served, the same considerations apply. In R v Zamagias [2002] NSWCCA 17 Howie J set out the principles relevant to the consideration of how a sentence was to be served. His Honour said: "26 Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be; R v Foster [2001] NSWCCA 215 at [30]. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52]; JCE at [17]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s 6 (periodic detention order), s 7 (home detention order) and s 12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995). 27 The fact that a term of a sentence is to be determined without regard to the fact that it is to be suspended is consistent with the approach adopted in other jurisdictions where that sentencing alternative has been available for many years, see R v Percy [1975] Tas SR 62 at 73; Stevens v Giersh (1976) 14 SASR 81 at 82; Dinsdale v The Queen (2000) 202 CLR 321 at 346 per Kirby J. 28 Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s 77 of the Act with respect to home detention. But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B." 47 His Honour followed the line of reasoning recommended by Howie J. Having determined an appropriate sentence for the co-offender, he then as the second step in the process, considered how that sentence should be served. In deciding that periodic detention was appropriate his Honour took into account the co-offender's compelling subjective features, the comparatively low level of criminality and that the drug trafficking enterprise would have continued even if she had not participated in it. 48 None of those matters which his Honour took into account in relation to the co-offender assisted the applicant. When his Honour came to consider whether there was any alternative to fulltime imprisonment in respect of the applicant, none of the factors to which Howie J referred were available to the applicant. On the contrary the objective seriousness of the applicant's offences required that his sentence be served by way of fulltime imprisonment. No error has been identified by the applicant in his Honour's decision that the applicant's sentence should be served in that way.

Conclusion 49 I have concluded that neither ground of appeal has been made out. The orders which I propose are:

(i) Leave to appeal be granted. (ii) Appeal dismissed. **********

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.

Dinsdale v The Queen (2000) 202 CLR 321 Johnson v R (2004) 78 ALJR 616 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52] R v Brown [1999] NSWCCA 323 R v Foster [2001] NSWCCA 215 at [30] R v Gorman (2002) 137 A Crim R 326 CASES CITED : R v Hammoud (2002) 118 A Crim R 66 at [7] R v Holder (1983) 3 NSWLR 245 at 260 R v Janceski (No 2) [2005] NSWCCA 288 R v Jurisic (1998) 45 NSWLR 209 at 249 R v MMK [2006] NSWCCA 272 at [11] R v Myers [2002] NSWCCA 162 at [34] R v Percy [1975] Tas SR 62 at 73 R v T (NSWCCA, 19 June 1995). R v Wegener [1999] NSWCCA 405 R v Wheeler [2000] NSWCCA 34 at [34] - [37] R v Zamagias [2002] NSWCCA 17 at [26] - [28]

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