Oncu v R

Court of Criminal Appeal (NSW)|2020-07-13|Before: Price J, Garling J, Wright J

Solicitors: Zahr Partners (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/356774 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2018] NSWDC 106 Date of Decision: 27 April 2018 Before: Berman SC DCJ File Number(s): 2014/356774

On 10 February 2020, the applicant filed: 1. a notice of application for extension of time to apply for leave to appeal; 2. a notice of intention to apply for leave to appeal; and 3. a notice of application for leave to appeal against sentence.
These were accompanied by short notes explaining what steps had been taken to obtain advice and obtain funds to pay legal fees.

Application for an extension of time

As noted above, the application for leave to appeal was filed out of time. Section 10(1)(b) of the Criminal Appeal Act 1912 (NSW) permits the Court to grant an extension of time for the bringing of an application for leave to appeal such as this. On the basis of the grounds of appeal eventually relied upon and the fact that the Crown did not oppose the granting of an extension of time, in my view the interests of justice require the granting of the extension of time sought.

Grounds of appeal

Initially the application for leave to appeal contained two grounds of appeal. However, on 6 July 2020 the applicant filed Amended Grounds, withdrawing the second of those grounds, leaving the following as the sole ground of appeal in relation to his sentence when the matter came on for hearing: "1. In determining the aggregate sentence, his Honour erred in the notional accumulation of the indicative sentences."
After the hearing, it came to the Court's attention that Berman SC DCJ may have sentenced the applicant on the basis of an incorrect standard non-parole period. The issue was raised with the parties by the Registrar.
As a consequence, by supplementary submissions dated 17 August 2020, the applicant sought leave to add, and made submissions concerning, a further ground of appeal as follows: "His Honour erred by taking into account, when sentencing the applicant in respect of the offence contrary to s. 7 Firearms Act 1996, a standard non-parole period of 4 years, which did not apply."
The Crown provided supplementary submissions on 26 August 2020 in which it did not oppose leave being granted and dealt with the further ground of appeal.
Neither party sought a further oral hearing in relation to the further ground of appeal. It is, in my view, appropriate to grant the applicant leave to rely on the further ground of appeal and to deal with that ground on the basis of the parties' written submissions.
The first ground of appeal seeks, in substance, to challenge the correctness of the recent decisions of this Court in Vaughan v R [2020] NSWCCA 3 and Kliendienst v R [2020] NSWCCA 98.
Since this matter can be disposed of by dealing with the further ground of appeal, it is not necessary to consider the first ground of appeal.

Further ground of appeal

In the proceedings on sentence in April 2018, Berman SC DCJ was informed, both in the Crown Submissions on Sentence at pars 3 and 8 and in the Outline of Submissions on Sentence for the Offender at par 4, that the standard non-parole period for the offence contrary to s 7(1) of the Firearms Act 1996 (NSW), to which Mr Oncu pleaded guilty, was four years. His Honour adopted this figure in his remarks on sentence - R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee [2018] NSWDC 106 at [18].
In addition, in his remarks on sentence, the learned sentencing judge found, at [74], that the firearm offence was "in the middle of the range of objective seriousness" and the indicative sentence specified for the firearm offence was four years with a non-parole period of two years.
The firearm offence to which the applicant pleaded guilty was, however, committed on 3 December 2014. As at that date, the standard non-parole period specified in item 20 in the Table of Standard non-parole periods following s54D of the Sentencing Procedure Act for the offences contrary to s 7 of the Firearms Act was three years. By the time of the proceedings on sentence, however, the standard non-parole period for these offences had been increased to four years.
In light of this material and having regard to the indicative sentence specified in respect of the firearm offence, I accept that the judge sentenced the applicant on the erroneous basis that the standard non-parole period for that offence was four years' imprisonment and not three years'.
A standard non-parole period is a legislative guidepost which a sentencing court is required to take into account on sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].
In cases where an aggregate sentence has been imposed, an appeal against sentence relates to the aggregate sentence and not the indicative sentences: Maxwell v R [2020] NSWCCA 94 at [103]. Nonetheless, if error is identified with respect to indicative sentences, such an error may have affected the aggregate sentence: Qaumi at [437].
I am satisfied that the erroneous standard non-parole period for the firearm offence materially affected the non-parole period for the aggregate sentence imposed by Berman SC DCJ.
Thus, by having regard to the incorrect standard non-parole period, his Honour allowed an extraneous or irrelevant matter to affect his determination of the appropriate non-parole period for the aggregate sentence so as to constitute error in accordance with the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 - see Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163 (Qaumi) at [440] (Johnson J, Bathurst CJ and Hoeben CJ at CL agreeing).
Accordingly, error has been demonstrated on the basis of the further ground of appeal. In those circumstances, as I noted above, it is not necessary to consider the first ground of appeal. Nonetheless, it can be observed that nothing in the applicant's submissions on the first ground caused me to consider that Vaughan v R [2020] NSWCCA 3 and Kliendienst v R [2020] NSWCCA 98 were not correctly decided.
Having found material error, the Court's task is then to exercise its independent sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Sentencing Procedure Act and any other Act or rule of law require or permit, in order to determine whether a lesser sentence should be imposed: s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

Resentencing

The Court's sentencing discretion is to be exercised having regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
The learned sentencing judge's findings and conclusions in his remarks on sentence were not challenged in this matter.

Remarks on sentence

Berman SC DCJ commenced his remarks on sentence with general comments concerning drug-related crime in New South Wales and the harm caused to the community caused by offenders who, for their own personal gain, are willing to satisfy the demand for prohibited drugs by importing, supplying or manufacturing them. His Honour also noted the maximum penalty of life imprisonment and the standard non-parole period of 15 years for the drug manufacturing offence in this case.
The factual circumstances of the applicant's offending, as found by the sentencing judge, are set out in the following paragraphs.
Prior to October 2014, a large metal shed on a concrete slab was constructed at a property at Kenthurst in New South Wales, for the purpose of manufacturing significant quantities of methylamphetamine. On 25 and 29 October 2014, the applicant and one of his co-offenders were first seen by police at those premises. Thereafter and until he was arrested on 3 December 2014, the applicant continued to attend those premises with others of his co-offenders. It was an agreed fact that 30.5 kg of methylamphetamine had been manufactured in the shed.
The fingerprints and DNA of the applicant, as well as those of his co-offenders, were found on various items of equipment in the premises consistent with them having an involvement in the manufacture of methylamphetamine, which the applicant had admitted by his plea of guilty.
When the applicant was arrested and his premises were searched, police found a firearm, a .357 Magnum revolver with the serial number obliterated. A single round of ammunition suitable for that weapon was also found. The sentencing judge observed that this had led to the applicant pleading guilty to an offence of unauthorised possession of a pistol. It was at this point that it was noted that the maximum penalty for the firearm possession offence was imprisonment for 14 years with an erroneously stated standard non-parole period of four years.
The sentencing judge also said that he took into account the offence of possessing ammunition without a licence or permit, relating to the single round discovered by police, but expressly noted that this offence carried a maximum penalty of only a fine.
His Honour found that neither the applicant nor his co-offenders were to be regarded as the "boss" of the operation. Otherwise, in determining the applicant's role in the offending, it was noted that the applicant did not give evidence and that it was necessary to view, with some circumspection, the out of court statements to third parties made by him and his co-offenders as to their respective roles. Berman SC DCJ found, beyond reasonable doubt, that the applicant played a more important role than two of the co-offenders, at times demonstrating an ability to direct and instruct two of his co-offenders. The third co-offender was found to be the leader and a director of the activities observed by the police through their surveillance of the shed.
As to the applicant's subjective circumstances, it was noted that a number of psychological reports concerning the applicant were tendered and that there was no challenge to the psychologist's finding that at the time of the offending the applicant was suffering from a gambling disorder and a depressive disorder. It was also said that he now suffers from an adjustment disorder due to the consequences of his offending.
The applicant was born in Turkey and came to Australia with his family at the age of 10. After he left high school he studied building and has worked hard since then, starting a company with some apparent success. He was recruited to work in the drug manufacturing endeavour and at least part of his motivation for doing so was to make money in order to repay debts he had incurred.
The applicant is married with two children now aged about eight and five. Since the birth of his second child, his wife suffered from postnatal depression and has been treated for depression and anxiety. In addition his elder daughter had recently been diagnosed with autism spectrum disorder, at the time of the sentence proceedings. It was also found that the family home was at risk because of debts the family owed. In that regard, however, his Honour found that the hardship to the applicant's family as a result of the applicant's incarceration was not exceptional. Nonetheless, his Honour took it into account as part of the general mix of subjective factors. In particular, it was said that the applicant knew that his offending had caused harm to his wife and children and might lead to them having to sell the family home.
The applicant's previous involvement with the criminal law was described as "relatively minor", including a driving offence and one offence of common assault.
His Honour referred to the many references tendered on the applicant's behalf, including documents from the Smith family, and accepted that the applicant had given generously of his time, as well as financially, to support others in need. It was accepted that the drug manufacturing offence appeared to have been completely out of character and that there was an explanation for it, namely the applicant's gambling which had led to financial problems.
On the other hand, Berman SC DCJ found there was no explanation at all as to what the applicant was doing with a serious weapon, with its serial number obliterated. Nonetheless it was noted that there was no suggestion that it was used or intended to be used in connection with the manufacture of the methylamphetamine. Nor, however, was there any suggestion that it was possessed for some innocuous purpose.
The sentencing judge looked at the Corrective Services case notes concerning the applicant and accepted that he was a hard-working and well respected inmate. His Honour also read the applicant's letter in which he expressed his remorse and shame and, although the applicant had not given evidence, the sentencing judge was prepared to accept on the balance of probabilities that the offender's expressions of shame and remorse were genuine. It was also noted that there was no suggestion that the applicant had offended in any way while he had been on bail for more than two years prior to sentencing. Finally his Honour accepted that the sentence to be imposed would act as a specific deterrent to the applicant ever offending again. Implicit in this reasoning was a finding that the applicant had good prospects of rehabilitation.
His Honour made a finding of special circumstances: "[b]ecause of the likely connection between his gambling and depression on the one hand and his offending on the other."
Under the heading "Assessment of criminality", Berman SC DCJ noted that the drug dealing operation in question was of a substantial scale and he was satisfied that the applicant and the other offenders were each involved in the manufacture of a quantity of methylamphetamine significantly greater than 1 kg. Further, there was no suggestion that the offenders would have given up their illegal activities were it not for the intervention of police. The manufacturing operation was clearly an ongoing one and it was not suggested on behalf of the applicant that he planned to cease his involvement at any time soon. It was found that the applicant and the other offenders can have been under no illusion as to the scale of the operation they were involved in and must have known that they were engaged in very serious criminal conduct. It was a sophisticated operation carried out by people who knew what they were doing and knew they were engaged in a substantial drug making enterprise. Consistently with what had been said earlier, it was found that the applicant performed a slightly less responsible role than one of his co-offenders but it was more important than that of the other two co-offenders. As a result, the sentencing judge assessed the applicant's drug related conduct as being: "in the middle of the bottom half on the scale of objective seriousness".
As to the objective gravity of the applicant's firearm offence, it was found that this was "in the middle of the range of objective seriousness".
Under the heading "General remarks", his Honour noted that general deterrence was of great importance. Even though he had found that the applicant and the other offenders had good prospects of rehabilitation, Berman SC DCJ considered that personal deterrence also had a part to play. The parity principle was also expressly considered and his Honour noted that the primary reason for the differing sentences was because of the differing roles played by each of the offenders as well as, in the applicant's case, the extra offence for which he was to be sentenced.
The utilitarian value of the applicant's pleas was taken into account and a discount of 20% was allowed, on the basis that the applicant's "pleas were not early".
In addition, the sentencing judge took into account the comparative cases to which his attention was directed and the sentencing statistics.
Having regard to all those matters, the aggregate sentence noted above was imposed and the indicative sentences were recorded. I accept and have taken all of these matters into account in assessing the sentences that should be imposed in this case.

Additional affidavit

The applicant also read, without objection, an affidavit of Ms Aisha Lopez sworn 9 July 2020. Although it was said that this affidavit was read in support of the application for an extension of time, this appears to have been a slip. The subject matter of the affidavit is relevant to the applicant's conduct, employment and courses while in custody not to whether the time in which to apply for leave to appeal should be extended. The Crown was clearly aware of the affidavit and its contents, and did not object to it being read. It does not appear to me that there is any substantial injustice if its contents are taken into account on resentencing.
I accept that the case notes annexed to the affidavit establish that the applicant: 1. worked in grounds maintenance and in the kitchen in a cooperative and polite manner while at Lithgow Correctional Centre; 2. was a Sweeper full time at Bathurst Correctional Centre and later worked there in building and maintenance, being praised for his efforts in cleaning and painting the Female Accommodation Unit and the quality of his work in the Recreation Room; and 3. has been, since being transferred to Oberon Correctional Centre, an "Adult Nucleus", (or "NUC"), looking after a group of young offenders aged between about 18 and 24 years on external camps, where he has demonstrated a good work ethic and support for young offenders while negotiating the fine line between discipline and support "extremely well".
While in custody, the applicant has also used his time to complete satisfactorily a number of courses in hospitality, logistics and first aid.
I have had regard to this material. Not only does it provide further support for a finding that the applicant has good prospects of rehabilitation and is genuinely remorseful, it is also an additional basis for finding special circumstances which justify a reduction in the non-parole period below the statutory ratio provided by s 44(2B) of the Sentencing Procedure Act.

Consideration

The applicable maximum penalties and standard non-parole periods are guideposts to which I have had regard. Further, I have applied a discount of 20% in respect of both counts for the utilitarian value of the applicant's guilty pleas entered in the District Court.
In relation to the firearm offence in count 2, I have taken into account the further offence on a Form 1 of possessing ammunition without authorisation.
In addition, I have had regard to the decision in Greentree v R [2018] NSWCCA 227, upon which the applicant relied as a comparable case, in reaching my conclusions.
I propose to adopt the commencement date of 30 January 2017 for the sentence in respect of the firearm offence. Since the drug manufacturing offence concerned different offending from the firearm offence, a degree of accumulation is required to reflect the totality of the offending. The non-parole periods I propose reflect the minimum periods that I consider appropriate for the applicant to be kept in detention in relation to each offence.
I find that there are special circumstances in light of the applicant's conduct on bail and while in custody and the benefit likely to be derived from a longer period of supervision upon release to assist his re-integration into the community.
Having regard to the purposes of sentencing in s 3A of the Sentencing Procedure Act, the objective seriousness of each offence and the subjective matters applicable to the applicant, I propose sentences to the effect set out in the table which follows. Offence Sentence 1 Manufacture not less than the large commercial quantity of a prohibited drug, methylamphetamine, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 8 years commencing on 30 January 2018 and expiring on 29 January 2026 with a non-parole period of 5 years expiring on 29 January 2023. 2 Possess a pistol, namely a .357 Magnum revolver, not being authorised to do so by a license or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW) which carried a maximum penalty of 14 years' imprisonment and a standard non-parole period of 3 years (taking into account the offence on the Form 1 of possessing ammunition without authorisation, contrary to s 65(3) of the Firearms Act 1996 (NSW)) 3 years commencing on 30 January 2017 and expiring on 29 January 2020 with a non-parole period of 1 year 6 months expiring on 29 July 2018.

These sentences yield an effective, overall sentence of 9 years' imprisonment commencing in 29 January 2017 and expiring on 29 January 2026. The applicant will be first eligible for parole on 29 January 2023.
As the proposed sentences lead to an effective sentence which is less severe than the aggregate sentence imposed by the District Court, that sentence should be quashed and fresh sentences should be imposed.

Orders

Accordingly, I propose the following orders: 1. The time for filing the notice of application for leave to appeal is extended to 10 February 2020. 2. The applicant has leave to rely on the further ground of appeal identified in his supplementary submissions dated 17 August 2020. 3. The applicant has leave to appeal against sentence. 4. The appeal against sentence is allowed. 5. The aggregate sentence imposed by the District Court on 27 April 2018 is quashed. 6. The applicant is sentenced to imprisonment as follows: 1. In respect of count 1, a non-parole period of 5 years commencing on 30 January 2018 expiring on 29 January 2023 with the balance of the term being 3 years expiring on 29 January 2026. 2. In respect of count 2, taking into account the offence on the Form 1, a non-parole period of 1 year 6 months commencing on 30 January 2017 and expiring on 29 July 2018 with the balance of the term being 1 year and 6 months expiring on 29 January 2020.

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: 07 October 2020

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