Mitreski v R

Application for Leave to Appeal

1. On 2 April 2015, the applicant filed a Notice of Application for leave to appeal. The application is limited to a single ground, in the following form: "The sentencing judge erred in declining to make a finding of special circumstances."
2. It will be appropriate to commence consideration of the application by setting out a brief summary of the facts giving rise to the offences.

Facts

1. This summary of facts is taken from a Statement of Facts tendered to the sentencing Judge, and from her Honour's Remarks on Sentence. The prosecution case against the applicant was largely based upon electronic surveillance of his telephone, and upon specific events observed on 21 March 2013.
2. Over the course of 10 and 11 December 2012, investigating police intercepted a series of text messages between the offender and another individual, which referred to the applicant being in a position to supply two ounces of methylamphetamine at a purchase price of $2,200. That offence was one of the offences placed on a Form 1 to be taken into account.
3. On 18 December 2012, further exchanges of text messages constituted an agreement by the applicant to supply Mr Edmonds with an ounce of methylamphetamine. This offence was also placed on a Form 1.
4. Over 24 and 25 December 2012, a further agreement to supply methylamphetamine by the applicant to Mr Edmonds was entered into. This involved the supply of one ounce of methylamphetamine. This was the third offence placed on the Form 1 schedule.
5. The offences which were specifically charged, and to which the applicant pleaded guilty, involved four occasions between 10 January 2013 and 2 March 2013, when the applicant agreed to supply one ounce of methylamphetamine to Mr Edmonds.
6. On 21 March 2013, investigating police monitored a meeting between Jason Edmonds and the applicant. The pair were followed to a fast food restaurant carpark at Edgeworth and were observed to park in adjacent spaces within that carpark. When the applicant arrived, Mr Edmonds was seen to get out of his car and walk towards the applicant's car. The police stopped the applicant and Mr Edmonds and arrested them.
7. Upon searching the applicant, police found a small resealable bag containing 27.4gms of methylamphetamine, the purity of which was 13.5%. The possession of this drug constituted the fifth offence with which the applicant was charged.
8. After the search was concluded, the applicant was asked about whether he had any further drugs in his possession. He informed police that there were drugs in his motor vehicle.
9. The police found a small Tupperware container in the car which contained 53.2gms of methylamphetamine with a purity of 12.5%. As well inside the container was a separate medium sized resealable plastic bag which was found to contain 29.6gms of methylamphetamine with a purity of 13.5%.
10. The applicant, when questioned, admitted that the drugs found on his person in the carpark were for supply to Mr Edmonds, and that the drugs found in the motor car were for the purpose of supplying other individuals. The possession of these drugs constituted the sixth drug supply offence with which the applicant was charged.
11. The final offence which was placed on a Form 1, was an offence of dealing in the proceeds of crime. After his arrest, police executed a search warrant at the applicant's home at Argenton. A sum of $14,050 was found. This sum of money formed the basis of the charge which was taken into account on a Form 1.
12. Wilson DCJ expressed these conclusions with respect to the facts: "The charged offences - [including] the Form 1 offences - represent the supply of over 330gms of methylamphetamine with an approximate value … of around $1,000 … per 28gms. The motivation for the offender's crimes was financial, and the $14,050 or so in his possession at arrest, is some small indication of the scale of the trade in which he was involved…. Plainly, over the period of three or fourth months encompassed by the charges, the offender was a supplier of reasonably significant amounts of methylamphetamine to those able to pay the purchase price for his product. He had a customer base and understood language by which drugs and payment could be discussed discretely, and a price structure and payment systems for the transactions in which he was involved. Significant amounts of money changed hands to the offender's profit. The conclusion that the offender was trafficking in methylamphetamine is inescapable … … The offender's crimes … represent a commercial operation of sales for profit to all comers."

Sentence Proceedings in the District Court

1. The Crown tendered a Statement of Facts. The Crown informed the Court that the applicant had no previous criminal history. It also tendered a pre‑sentence report.
2. As well, the Crown sought an order for the forfeiture of the money pursuant to the Proceeds of Crimes Act 2002 (Cth). The Crown asked that an issue with respect to the forfeiture of the applicant's motor vehicle await further proceedings.
3. Counsel for the applicant tendered seven documents which were references about the applicant, either from friends or family, former employers and a short reference from the Parklea Chaplaincy Service. Finally, a letter from the applicant addressed to the Court was tendered. There was no objection to that material and it was admitted. There was no other evidence or material placed before the Court on the question of sentence.
4. The pre-sentence report compiled by the Community Corrections officer at Parklea, set out the background of the applicant. It recorded that the applicant was the eldest of two siblings; that he had a stable and supportive upbringing; and that his parents' Macedonian culture and beliefs played a strong part in his upbringing, which occasionally led to clashes with his beliefs developed in a more Westernised culture.
5. The Court was told that the applicant continued to share a close relationship with his family and has been the recipient of their ongoing support during his period on remand.
6. The applicant was educated to a Year 12 level, although his education was characterised, and disrupted, by the fact that he was bullied by reason of his different ethnic background from his fellow students.
7. The applicant worked part-time during his time at school and, upon completing school, began full-time employment in a warehouse with a major retail company. He worked there for over 15 years, and was promoted over time to a managerial position. Once he achieved that position, the applicant apparently began experiencing workplace bullying which resulted in him leaving his job, but gaining employment with a well-known machinery company. The applicant's employment with that company continued up to the time of his arrest, although his position was due to be made redundant about a week later.
8. The applicant reported a history of drinking, and using illicit substances later in life, from about the age of 23 on a regular basis. About a year before his arrest the applicant recorded that he began using amphetamines on a weekly basis. He also reported that he had a gambling problem. The Community Corrections officer assessed the applicant as being at low risk of re-offending.
9. The Community Corrections officer expressed the view that the applicant accepted responsibility for his role in the offences, and was able to demonstrate an appropriate level of insight as to how his actions may impact on the greater community.
10. The officer considered that the applicant would benefit from a period of supervision by Community Corrections, with strategies including referral to appropriate agencies to address gambling issues, a referral to a drug and alcohol service for assessment and referral to a psychological service to address "… unresolved issues with regards to bullying".
11. The applicant's letter to the Court included the following statements: "Since my incarceration one year ago, the time in custody I have spent on remand, I have come to realise the error of my ways. I have had a lot of time to reflect and am very remorseful of my actions and seeing how I have hurt my family, hurts me even more."
12. The applicant went on to record that he had used his time in custody to undertake courses whenever possible, that he had sought help from the chaplaincy service and had come to recognise that his crimes were associated with his alcohol intake, his recreational drug use, and his gambling addiction.
13. He informed the Court that he proposed to change those things by changing his friends when he was released from custody and making every attempt upon release to live a responsible and better life.
14. The various references testify to the fact that, but for these offences, the applicant was a man of good character who had got along well with his peers, participated in sport and had been a good employee.
15. The reference from the chaplaincy service referred to a note with respect to Mr Mitreski's participation in the Positive Lifestyle Program: "Goce has been one of the most encouraging participants I have encountered in this course over the past few years. We have talked about how he draws on past problems and past successes in planning for the future. His ability to think out of the square in organisation at work, something he was very proud of, and we talked about he needs to use those skills in other settings, especially in close relationships. He has a realistic grasp of future planning and is acknowledging he will have to contend with significant 'ex inmate' hurdles as normal life problems."
16. One of the employment references was of importance. It came from an international freight forwarder and licensed customs broker. It says: "George Mitreski is a person who is held in high regard within our organisation. Management at Megatop Cargo are aware of George's attributes and have offered a position within the company in the past as a warehouse manager. George is both very bright and quite motivated. I am confident that he will devote himself to a position within our organisation with a high degree of diligence. Mr Mitreski would be an asset at Megatop Cargo as he is highly motivated and skilled in the role we are looking to fulfil within our warehouse staff ranks. I recommend George without reservation. I am confident that he will establish productive relationships with the staff at Megatop and our constituents."
17. Whilst this is a relevant and most supportive statement, it is regrettable that the author of it does not acknowledge that she has been provided with any information at all, or that the company has been provided with any specific information about the nature of the offences, and the underlying conduct, in which the applicant had been engaged. Necessarily, this limits the weight which can be given by the sentencing Judge to the author's opinion.

Remarks on Sentence

1. Her Honour's Remarks on Sentence commenced with a careful attention to the facts of the applicant's offending. Her Honour also noted that the applicant had entered pleas in the Local Court prior to committal, which warranted a discount of 25% on any sentence.
2. Her Honour made positive findings in her Remarks on Sentence with respect to the applicant. Those positive findings included: 1. the applicant was a man aged 34 years old without any prior criminal history, of previous good character who was well supported by his close family; 2. the applicant had a good level of education, and a good working ethic, and a good long term work history, seemingly continuously employed after leaving school; 3. the applicant's work history was such that he had a number of employment opportunities open to him upon release from custody; 4. the applicant became involved in the drug trade as a means of obtaining funds to gamble and pay his gambling debts; 5. the applicant had good prospects of rehabilitation, his future prospects were bright; 6. the applicant was remorseful for his crimes and had some insight into the damage that drug traffickers inflicted on others; 7. the applicant had made the most of his time in custody seeking out courses and activities that could assist him to address his gambling addiction and substance abuse; he had sought counselling and spiritual support from chaplains and was regarded as a model prisoner who worked hard and well.
3. Her Honour then noted that a submission had been made on behalf of the applicant that the Court should find special circumstances. With respect to that submission, her Honour said: "Special circumstances seem to have become, in practical application, anything but special. Here, the offender has addressed his gambling addiction to the extent that he can in custody, and sought assistance for his drug use issues. It seems to me that there is no real need for any extended period of parole and, accordingly, I do not make that finding."
4. Her Honour then addressed the fact that in cases involving trafficking of drugs, general deterrence needed to be a substantial element of any sentence which was imposed. Her Honour had also earlier addressed the question of weight to be given to the applicant's prior good character and lack of criminal history. She observed, in accordance with authorities cited, that in cases of deliberate and planned criminality, particularly with drug trafficking, the features of good character and lack of prior criminal history would have less significance and weight in considering the appropriate sentence to be imposed. Her Honour also noted that having regard to the fact that the criminality in question was a course of conduct over a period of some months "… his former good character has to be of diminishing relevance in any event".
5. Her Honour then summarised the position with these remarks: "The offender's crimes represent an ongoing course of criminality which can, subject to the principle of totality, be appropriately reflected by an aggregate sentence. There should, in my view, be some degree of accumulation since the magnitude of the overall criminality cannot adequately be comprehended by the sentence imposed for one individual offence."
6. Her Honour then proceeded to impose the aggregate sentence, which consisted of an overall sentence of 4 years and 4 months, with a non-parole period of 3 years and 3 months.

Applicant's Submissions

1. As earlier indicated, the applicant relies on a single ground of error on the part of the sentencing Judge, namely, her failure to make a finding of special circumstances.
2. The content of her Honour's Remarks on Sentence which specifically addresses the issue of special circumstances is set out above at [38].
3. The applicant submitted that her Honour's conclusion that there was "no real need for any extended period of parole" was the principal reason for her conclusion that special circumstances did not exist. The applicant submitted that this was an erroneously narrow conclusion because the principle referred to by some authorities reflected both the need for an extended period of release on parole and, as well, the desirability of an extended period of release on parole to facilitate the rehabilitation of the offender as constituting special circumstances.
4. The applicant next submitted that, in considering whether there was a "need" for an extended period of parole, the sentencing Judge erroneously focussed attention on what the applicant had done in the past while in custody. The error was submitted to be that what the applicant had done whilst in custody was not directly relevant, the issue being whether he needed an extended period of conditional release in the future, subject to parole, to improve his chances of successfully overcoming his gambling addiction and drug issues.
5. Finally, the applicant submitted that his case was one which raised a clear basis for a finding of special circumstances, namely, that the finding that he had already made progress towards rehabilitation, and had good prospects of rehabilitation, was directly relevant to the consideration of making a finding of special circumstances, but had not been taken into account by the sentencing Judge.
6. The applicant submitted that in the event that error was established, this Court would engage in a resentencing process which left the head sentence intact, which made a finding of special circumstances, and then determined the appropriate non-parole period.

Crown Submissions

1. The Crown submitted that the ground for the application was misconceived because the sentencing Judge had carefully considered whether or not special circumstances should be found, and had rejected a finding of special circumstances. The Crown noted that this was not a case in which a sentencing Judge had failed to consider whether or not special circumstances existed, nor had failed to provide reasons for not finding the existence of special circumstances.
2. The Crown drew attention to a recent decision of this Court in Estephan v R [2015] NSWCCA 100 which addressed all of the principles involved in a finding of special circumstances.
3. The Crown noted authorities of this Court to the effect that the mere fact that in any one case there were circumstances present which enabled a finding of special circumstances to be made did not compel the Court to make such a finding and thereby reduce the non-parole period. The Crown submitted that the Court would keep in mind that a non-parole period must appropriately reflect the criminality involved in the offence.
4. The Crown finally submitted that there was no error of the necessary kind to allow for this Court to intervene. In particular, the Crown pointed to the fact that the factors relied upon as constituting special circumstances were taken into account as mitigating factors in the determination of the aggregate sentence, and to count them again would run the risk of double counting. The Crown concluded by submitting that: "Her Honour, as she was entitled to be, was unpersuaded by the applicant's circumstances that there was a sufficiently special basis for a finding of special circumstances on the material before her. The applicant did not discharge his onus of persuading her Honour to find special circumstances, and it would have been an error for counsel to attempt to persuade her by double counting the factors already advanced as [mitigating] circumstances."

Discernment

1. It cannot be doubted that a determination by a sentencing Judge to adjust the ratio of the non-parole period to the overall sentence from that prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act involves the exercise of making findings of fact, accompanied by an evaluative judgment to determine whether the factual circumstances found justify the lowering of the non-parole period below the statutory ratio: see R v Simpson [2001] NSWCCA 534 at [73]; (2001) 53 NSWLR 704; MD v R [2015] NSWCCA 37 at [40]; Allen v R [2015] NSWCCA 113 at [33].
2. Section 44(1) of the Crimes (Sentencing Procedure) Act records that the non-parole period for the sentence is "… the minimum period for which the offender must be kept in detention in relation to the offence". Spigelman CJ in R v Simpson at [56] noted that this express provision reinforced what the High Court of Australia had said in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, where, in the joint judgment, at 628 and 629, the Court said: "… In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing Judge considers that the crime committed calls for such detention."
3. And, further, at 629: "… The legislative intention … [is] to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve, having regard to all of the circumstances of his offence."
4. As Spigelman CJ went on to say, at [57] in Simpson: "The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of 'special circumstances', must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole."
5. The nature of the findings underpinning a finding, or rejection of a finding, of special circumstances are such that this Court is slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]; Piscitelli v R [2013] NSWCCA 8 at [54].
6. As submitted by the Crown, the mere presence of circumstances which are capable of constituting special circumstances is not sufficient to compel the Court to make such a finding, thereby reducing the statutory ratio of the non-parole period to the whole sentence: R v Fidow [2004] NSWCCA 172 at [22].
7. It is also appropriate to note that at [59] in Simpson, Spigelman CJ rejected the proposition that the fixing of a non-parole period is a matter that is to be determined solely or primarily by reason of considerations of rehabilitation.
8. The High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120, said at [57]: "In any event, it was an error to determine the structure of the sentence upon a view that the appellant would benefit from treatment while in fulltime custody. Fulltime custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody. Furthermore, the availability of rehabilitative programs within prisons is a matter for executive determination. There can be no confident prediction that an offender will be accepted into a program or that the program will be continued to be offered during the term of the sentence." (footnotes omitted)
9. The applicant's submissions which criticise the sentencing Judge for not addressing both the need and desirability for any extended period of parole, are misplaced. Both are capable of constituting special circumstances: Muldrock at [58]; GN v R [2012] NSWCCA 96 at [14].
10. The phrase "special circumstances" seems to have attracted overly frequent judicial scrutiny. Submissions have sought to have the Court interpret the phrase narrowly, or to restrict what can or ought or must be taken into account. The Court has been asked to endorse statements as to what the "test" is for special circumstances to be established.
11. However, the past authorities of this Court have emphasised the breadth of the phrase "special circumstances", and have avoided any narrowness of interpretation, and have not adopted any "test" which an offender needs to comply with before the Court can find special circumstances.
12. As Samuels JA said in R v Moffitt (1990) 20 NSWLR 114, at 116 E-F: "In determining whether there are special circumstances … the Court must consider all the relevant circumstances: that is to say … all the factors which the prisoner's overall situation exhibits and which in combination make the case special and bear upon the suitability of a longer than normal additional term …"
13. Spigelman CJ said in Simpson at [60] of the words "special circumstances" that they are words of "indeterminate reference", which appear in a sentencing context and that: "60 Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation. While certain considerations might not often be sufficiently 'special', so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that 'special circumstances' are made out on the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a 'special circumstance'. "
14. The manner in which the sentencing Judge expressed herself did not indicate, as submitted by the applicant, an unduly narrow approach to a finding of special circumstances. The Remarks on Sentence indicated that her Honour had considered, and found, all of the facts which were relevant to the imposition of sentence, including the non-parole period, and which may have been relevant to a finding of special circumstances. It is correct that her Honour expressed one reason for declining to find special circumstances, but that part of her Honour's remarks cannot be read as demonstrating that she ignored all of the other factors, nor that she ignored the ultimate issue, namely what was the minimum period of imprisonment called for by the offences to which the applicant pleaded guilty.
15. The Court is not persuaded of any error on the part of the sentencing Judge in this respect.
16. The criticism of her Honour for noting that the applicant had addressed his gambling addiction, and had sought assistance for his drug use issues whilst in custody to the extent that he could, is not a valid one. Her Honour was commenting on the past situation. She was reflecting on the facts of which she had been informed by the applicant. Those facts had been corroborated by the pre-sentence report and, in a general sense, by the chaplain's report.
17. Her Honour was not making, as submitted by the applicant contrary to the authority in Muldrock, a determination based upon the possibility of future treatment whilst in custody. She was merely commenting upon the past. She was indicating that the fact that the applicant had undergone steps towards rehabilitation to the extent which he could, a fact which underlay her Honour's conclusion that his future prospects of rehabilitation and more generally were good, indicated that he did not need a longer period of parole than that prescribed. There is nothing erroneous about her Honour's remarks in this respect. They do not display error of the kind alleged.
18. The nub of the complaint by the applicant was that there were many features of the applicant's subjective case which could have, and would have, justified a finding of special circumstances.
19. However, her Honour reviewed all of these facts, she noted them and took them into account in determining the sentence, both the non-parole period and the balance of term. She declined to find special circumstances. The Court is not persuaded that there has been any error in her Honour's refusal to make a finding of special circumstances.
20. The general facts and matters are not such as would compel this Court to a conclusion that her Honour's evaluative judgment was of a kind which permitted this Court to intervene.
21. The appeal should be dismissed.

Orders

1. The following orders should be made: 1. Application for leave to appeal granted. 2. Appeal dismissed.

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