Police V Megaloudis [2010] NSWLC 25

Local Court of NSW|2010-08-24|Before: Howie J

CITATION: Police V Megaloudis [2010] NSWLC 25

PARTIES: Police Apapitos Peter Megaloudis

CATCHWORDS: Possession of an Unauthorised Firearm - Firearms Act 1996 Section 7A(1) - Knowingly Take Part in the Supply of a Prohibited Drug - Drugs Misuse and Trafficking Act 1985 - Section 25(1) - Possess Protected Fauna - 2 charges - National Parks and Wildlife Act 1974 - Section 101(1)

Markarian -v- The Queen (2005) 79 ALJR 1048 Postiglione -v- R (1997) 189 CLR 295 at 308 R -v- AA [2006] NSWCCA 55 at [46] R -v- Cartwright [(1989] 17 NSWLR 243 at 252 R -v- Doan (2000) 50 NSWLR 115 R -v- Gallagher (1991) 23 NSWLR 220 at 232 R -v- Leroy [1984] 2 NSWLR 441 R -v- M [2005] NSWCCA224 at [21]-[22] R -v- MAK [2006] NSWCCA 381 at [18] R -v- Mitchell [2002] NSWCCA 270 at [14] R -v- Najem [2008] NSWCCA32 at [140] CASES CITED: R -v- Pierce (1998) 194 CLR 610 at [45] R -v- Sellen (1991) 57 A Crim R 313 R -v- Shi [2004] NSWCCA135 R -v- Simon [2005] NSWCCA 123 AT [30] R -v- Smith (1987) 44 SASR 587 R -v- Taylor [2000] NSWCCA 442 R -v- Thurgar (1990) 51 A Crim R 109 R -v- Tolley [2004] NSWCCA 165 Howie J at [53] R -v- Vachalec [1981] 1 NSWLR 351 at 353 and 354 R -v- Way (2004) 60 NSWLR 168 at [122] R -v- Zamagias [2002] NSWCCA 17 at [28] Yang -v- R [2007] NSWCCA 37 at [18]

The offender appears before the Court today for sentencing in relation to one charge of possessing an unauthorised firearm, one charge of supplying a prohibited drug and two charges of possessing protected fauna. Six additional charges relating to the possession of prohibited drugs, failing to keep a firearm safe and possession of various quantities of ammunition have been placed on a Form 1 pursuant to Section 32 of the Crimes (Sentencing Procedure) Act 1999.

The offence of possessing an unauthorised firearm is brought pursuant to Section 7A(1) of the Firearms Act 1996. The maximum penalty for this offence is 14 years imprisonment. Where the offence is dealt with summarily Table 2 of the Criminal Procedure Act 1986 provides for a penalty of 2 years imprisonment or a fine of 50 penalty units or both.

The offence of knowingly take part in the supply of a prohibited drug is brought pursuant to Section 25(1) of the Drugs Misuse and Trafficking Act 1985. The agreed statement of facts establishes that the drug involved is cocaine and the weight 4.65 grams. The weight of this drug brings the offence into the category where it is more than a small quantity of this particular drug but less than the indictable quantity. Section 31(1) of the Act requires the charge to be dealt with summarily unless an election to proceed on indictment is made. In such instance the maximum penalty in the Local Court is 2 years imprisonment as opposed to 15 years imprisonment where dealt with on indictment.

The offender also enters pleas of guilty to two charges brought pursuant to Section 101(1) of the National Parks and Wildlife Act 1974 of possessing protected fauna. The maximum penalty for these offences is based on the prospective circumstances of the fauna in question. Where the offence is committed in relation to protected fauna simpliciter the maximum penalty is a fine of $11,000 and/or 6 months imprisonment Section 101(1)(a). Where the fauna in question is threatened interstate fauna the maximum penalty is a fine of $110,000 and/or imprisonment for 1 year or both. Section 101(1)(b)

A detailed statement of agreed facts are attached to the Court file. For the purpose of these sentencing remarks I have condensed them.

On 16th April 2009 Police executed a search warrant on the offender's premises at Kurnell. The offender was cooperative. He produced to police a double-barrelled shotgun loaded with two shells. This had been secreted under the lid of a fish tank. The offender said he had been given the weapon by an unnamed person and kept it in reach for use if needed as personal protection. He was aware it was loaded. Offence sequence 4

During the search two adult corn snakes and one veiled chameleon were located in two-glass herpetoria. The fauna were entrusted to staff of the RSPCA who accompanied police to the search. The corn snakes are accepted to be protected fauna. Offence sequence 10 The veiled chameleon is listed as an endangered species. Offence sequence 11

The offender admitted acquiring the fauna and keeping them as pets. He said he was unaware that he required a license to authorise their possession.

Also located within the premises was 4.65 grams of cocaine. After initially denying knowledge of the presence of the drugs the offender admitted he kept it for regular use by members of the Rebels motorcycle gang and for personal use in their company.

The remaining offences contained within the Form 1 relate to the possession of another small quantity of a prohibited drug, the failure to keep the unauthorised firearm safely secured, possession of an unregistered firearm [the shotgun], possession of a firearm with a defaced serial no. [the shotgun] and two further offences of possessing 42 shotgun shells and 323 .22 calibre bullets. The Plea

The offender first appeared before the Court on 17th April 2009. The proceedings were adjourned to the Downing Centre for case management at a centralised committal court. On 16th March 2010 the proceedings were directed into Case Conferencing. Such a process is authorised under the Criminal Case Conferencing Trial Act 2008. This legislation provides for statutory consequences relative to the stage at which proceedings are finalised.

On 18th May 2010 the Director of Public Prosecutions withdrew the election to proceed on indictment. The offender then entered a plea of guilty to each charge. Once such plea is entered the provisions of Section 17 of the Criminal Case Conferencing Trial Act become enlivened. Those provisions are expressed, inter alia, in the following terms: "(1) if an offender pleaded guilty to an offence at any time before being committed for sentence the sentencing court must allow a discount for the guilty plea calculated as follows:" The discount is quantified as 25%.

"Sentencing Court" is defined in Section 3 of the Act to mean " the court imposing a penalty in relation to the offence…" This outcome is separate from any mitigation of penalty resulting from consideration of the provisions of Section 21A(3) and the subjective features generally relevant to the offender and the offending. Assistance to Authorities

Before proceeding to sentence today the solicitor representing the Director of Public Prosecutions tendered an affidavit sworn by a senior member of the New South Wales Police Force. The document was tendered pursuant to Section 23 of the Act. These provisions authorise a court, where appropriate, to reduce the penalties for offences for assistance provided to law enforcement authorities.

Without disclosing the detail the annexure to the document establishes that subsequent to his arrest the offender provided information to Police that led to the successful prosecution of an offender for a substantial number of offences. It also establishes that the offender has provided information to police of a more general nature that to date has not assisted in the detection and prosecution of offenders for other crimes.

The final paragraph of the annexure to the affidavit values the contribution by the offender as at the lower to middle range of benefit. This opinion is proffered on the basis that in providing the information the offender did not expose himself to risk but rather acted out of self-interest. Such an opinion is relevant in the context of Section 23(2)(b) and (g).

Exercising a discretion to reduce a sentence by reason of assistance to authorities is well established.

In R -v- Cartwright [(1989] 17 NSWLR 243 at 252 the Court observed: " it is clearly in the public interest that offenders should be encouraged to supply information to authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information. In order that such encouragement is given the appropriate reward for providing assistance should be granted, whatever an offender's motive may have been, be it genuine remorse or contrition or simply self interest. …. The information which he gives must be such as could significantly assist authorities. The information must of course be true…"

In this case it is clearly established that part of the information supplied by the offender is true and led to the successful prosecution of an offender who, when confronted with the fruits of police discovery of his activities, entered pleas of guilty. The affidavit is silent on whether had that not been the case the offender would have been prepared to give evidence. The inference to be drawn from the opinion that the offender faced little risk appears to be based on the fact that the product of his information was dealt with by way of a plea of guilty and the need therefore for the disclosure of his information to third parties was reduced or removed entirely. Nonetheless he is in my view to a further discount in addition to the utilitarian value of his plea.

This does not mean that he is entitled to have any sentenced reduced so that it becomes unreasonably disproportionate to the nature and circumstances of his offending. So much is clear from Section 23 of the Act. As the court said in R -v- Gallagher (1991) 23 NSWLR 220 at 232:

"Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency…..Care must be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that even understood in the light of the considerations of policy which supports the discounts given it constitutes an affront to community standards." 19. In determining the level of discount for assistance I am mindful of the observations of the Court in R -v- M [2005] NSWCCA224 at [21]-[22]. In my view an additional discount of more than 20% would be excessive having regard to the seriousness of the respective offences. Accordingly the discount to be applied to the ultimate sentences will be %45

Each offence is, in its own right, objectively serious. The conduct in relation to each is to be considered against the legislated maximum penalty. The principles enunciated in R -v- Doan (2000) 50 NSWLR 115 are well settled in relation to the contrast between the jurisdictional limit within the Local Court and the legislated maximum penalty. It is also pertinent to reiterate the observations of the High Court in Markarian -v- The Queen (2005) 79 ALJR 1048 wherein the Court said: "…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."

Sequence 4 - Possession of Unauthorised Firearm 21. In the case of the offence of possessing an unauthorised firearm the Court has regard to the fact that within the jurisdiction of the District Court this is an offence to which a standard non parole period of 3 years applies for an offence falling within the middle range category of objective seriousness. As Howie J said In R -v- Simon [2005] NSWCCA 123 AT [30]: "… significance has to be granted to the standard non-parole period even in a case …where it does not strictly apply because the offender pleaded guilty."

This reflects the position adopted in R -v- Way (2004) 60 NSWLR 168 at [122] wherein it was said that the standard non-parole period takes its place as: " a reference point or benchmark or sounding board along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty as are applicable and relevant."
I acknowledge that the foregoing comments were intended for consideration within the sentencing exercise in a different jurisdiction. However in light of the principles set out in Doan (supra) I see no reason for this court to disregard such observations. At the very least the comments assist in reaching the conclusion that the offender's conduct in the commission of this offence is serious. In deciding to proceed within this jurisdiction it can be inferred that the Crown does not regard the offender's conduct as falling within the middle range of objective seriousness. This is a matter of opinion. It does not mean this Court is bound to accept the fact that placing this matter before a court of inferior jurisdiction consequently leads to a conclusion that the offence is towards a lower range of objective seriousness.

The Court does not lose sight of the fact, from the words of the offender himself, that the weapon was secreted within his premises fully loaded with the stated objective that it be available to him for use against a third party or parties if the offender considered it necessary. Whether in the event of an unwelcome intrusion into his premises he would have used it to inflict potentially deadly force is speculative. The fact that he planned for the possibility and indicated an intention to do so is a matter of fact.

In R -v- Thurgar (1990) 51 A Crim R 109 Gleeson J. emphasised the importance of the use to be made of an unlicensed firearm when determining the seriousness of an offence of being in possession of it.

In R -v- Tolley [2004] NSWCCA 165 Howie J at [53] said that "this observation had now to be considered in the light of the substantial legislative changes that have been made to offences concerned with firearms since 1999. Nothing said in that case should be taken as any warrant for not treating a firearms offence seriously notwithstanding that no criminal use is to be made of the weapon."

Further in R -v- Najem [2008] NSWCCA32 at [140] Smart AJ said: "The rationale includes at least a recognition that firearms and pistols, if possessed are liable to be used and if used are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge is liable to amount to a great infringement of others [sic] rights."

Other principles apply in relation to this conduct. The unauthorised possession of a loaded firearm that has had its serial number removed may be consistent with it being used for a criminal purpose: Yang -v- R [2007] NSWCCA 37 at [18]. In this matter the offender clearly admitted possession of the loaded weapon for a dangerous purpose. Although it is problematic when the offender acquired the firearm and there is some suggestion his placement of it, loaded for action is referable to an assault at an earlier point in time together with an expectation that he might be visited by undesirable members of the community in futuro as Rothman J said in R -v- AA [2006] NSWCCA 55 at [46] where the respondent had a prohibited pistol for self protection following an earlier severe assault: " It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law."

A loaded firearm may aggravate the seriousness of the possession R -v- Mitchell [2002] NSWCCA 270 at [14]. Given the expressed possibility as to future use falling from the lips of the offender, such is clearly the case before this Court.

Taking the foregoing guiding principles into consideration the court draws the conclusion that the offence falls within the upper middle range of objective seriousness for an offence of this nature. It is certainly a course of conduct that warrants emphasis on general and particular deterrence. It is also appropriate to note that the offences relating to firearms and ammunition contained on the Form 1 cannot be ignored and, as was observed in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, " are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for a particular offence." Spigleman CJ at [42]

The quantity of drug involved in this offence is just below the indictable quantity. The purpose for its presence at the premises was, as the offender disclosed, to facilitate the sharing of cocaine amongst unidentified members of the Rebels Motor Cycle Club at gatherings that he regularly hosted. In this matter it is not apparent from the facts whether the offender was the person who acquired the drugs or was merely the guardian of the Club's supply. In the absence of clarity the lenient view ought be taken, namely that he was acting as the keeper of the drugs on behalf of a number or unidentified members of the motorcycle group. This does not mean that his involvement is insignificant.

As the Court said in R -v- Shi [2004] NSWCCA135 the role of the offender as the facilitator or "storeman" is relevant to the level of criminality. "… the culpability of those who engaged at any level in drug supply networks is significant and that deterrent sentences are necessary since absent the involvement of couriers, warehousemen and so on these networks whether established for the purposes of importation or subsequent distribution would simply collapse."

It appears from the facts that at the very least the offender was custodian of the drugs and was rewarded with access to them either separately or in conjunction with gatherings at his premises. It is irrelevant that the persons who attended the premises were current or former fellow members of the Rebels motor cycle group or other related individuals. Exposing others to the opportunity to use prohibited drugs exposes them to all of the well-known potential consequences and contributes to an ongoing undermining of respect for the law that prohibits the possession and use of prohibited drugs. It goes without saying that the availability of such a supply necessarily involves participation in the proliferation of the supply of drugs within society. Such conduct is intolerable and warrants condign punishment. His conduct is in my view in the middle range of objective seriousness relative to an offence dealt with summarily. Offence sequences 10 & 11 - Possessing Protected Fauna

The ultimate penalty for the two offences must reflect the objective seriousness of each. They cannot be dealt with by the imposition of equal penalties because the differential penalty regime must be reflected in the ultimate outcome.

The less serious offence ought be classified towards the lower end of the scale, exacerbated only by reason of the number of protected fauna in his possession. The more serious offence also falls within the lower middle range of objective seriousness by reason of the fact that the offender had only one chameleon in his possession. However the court does not lose sight of the fact that removing a member of an endangered species from its natural habitat removes a capacity for contribution towards an increase in the endangered population and thus has the capacity to exacerbate an already known situation. Again, this is a course of conduct and series of offences that call for the imposition of deterrent sentences.

Were it not for the fact of the plea of guilty and the inference from the agreed statement of facts that the fauna in question appear to have been well cared the court would have imposed a gaol sentence for the more serious offence. There is an inference that the "damage" caused by the offender was temporary and likely to be remediable through the intervention of the RSPCA and other appropriate agencies. In such circumstances fines for both offences are appropriate.

The offender comes before this Court as a 45 year old man with no prior convictions. He is the father of 3 young children and, although separated from his wife, appears to have regular contact with them. The Pre Sentence Report and the report from the offender's consultant psychologist establish that for many years the offender was a contributing member of society, educated to Technical College standard with a diploma in architecture and the instigator of a successful telecommunications business he managed until his late 20's. In the mid 1990's the offender developed anxiety attacks and agoraphobia, becoming housebound for a period. Detailed information regarding his various mental and medical difficulties are outlined in the report of Dr Watson-Munro.

Those issues to one side it is clear that at a point in the offender's life he became involved in the abuse of prescription and illegal drugs. His condition has been exacerbated by the consequences of a motorcycle accident and the existence of sleep apnoea. His weight has also become an issue and he is described as "morbidly obese". During the periods of development and existence of these various conditions the offender's involvement with the restoration and riding of motorcycles brought him into contact with the Rebels Motor Cycle group.

The offender in evidence before the Court asserted that although he had acquired his "colours" as a member of the Rebels he became involved with them primarily as a means of sharing his passion for motorcycling. He also asserted that he had returned his colours to the Club some 6 months before his arrest and that following this had been robbed of his motorcycle, bashed and suffered a home invasion.

This evidence contrasts with the admissions made that he hosted bikie group meetings at his premises and provided drugs to those attending. Whether his evidence fits within the compass of the admissions is problematic. He cannot be further punished simply because he is or was a member of a motorcycle group. It is incidental to the nature of the criminal offending other than by way of context.

It is clear from the references tendered to the Court that the offender has strong support from his wife and his extended family as well as others within the community. None of his referees appear to be anything other than decent, law-abiding members of society whose view of the offender is based on long periods of observation and deep personal knowledge. They are to be admired for their devotion to and support of a person who, on any objective consideration has for some years placed himself outside the fringes of society through his involvement with what would seem to be less law abiding members of the community.

Subjective circumstances to one side the offender can look to Section 21A(3) for a number of factors to be applied in mitigation of penalty. I have already referred to the impact of the plea of guilty and acknowledged within the overview of the offender's subjective circumstances his lack of prior convictions. By reason of statutory application and Section 21A(3)(f) the offender's prior good character also requires consideration although it carries less weight in relation to offences involving drugs R -v- Leroy [1984] 2 NSWLR 441. This is to say that the degree of mitigation by reason of good character will be correspondingly diminished but not significantly so.

The penalties are also to be mitigated by reason of Section 21A(3)(a), (b)(e)(g) and (h). Favourable application of subsections (g) and (h) can be given by reason of the lack of prior history of offending relative to the offender's age and the degree of support that will be available to him within his immediate and extended family. Judging when the time has come in an offender's life to gain the realisation of the futility of offending is inevitably problematic and often aspirational. Nonetheless in the case of this offender the prospect of being further distanced from his immediate family, his children in particular together with the prospect of losing the current trust in his capacity for change expressed by his referees warrants the court erring on the side of a positive conclusion on this issue on this occasion.

Despite the cautionary wording of Section 23A(3)(i) on balance the court is satisfied the offender has accepted responsibility for his conduct and is remorseful. Admissions as to his guilt were made at the time of his arrest. If his unchallenged evidence before the Court regarding the renouncement by him of his "colours" and future involvement with the motor cycle group is to be accepted; and on balance absent evidence to the contrary, it is then he has crossed the Rubicon of involvement outside the fringes of society and has begun the process of re-integration.

None of the foregoing factors however apply to such an extent in mitigation of penalty that the purposes of sentencing set out in Section 3A of the Act can be ignored. I have already referred to the need for general deterrence. That objective remains undisturbed by favourable findings in mitigation of penalty. It is important to remember that subjective circumstances found to mitigate a penalty do not replace the need for adequate punishment.

So much is implicit in the submission made by counsel for the offender that the more serious offences are dealt with by way of a suspended sentence. The basis upon which such submission is predicated is that the offender comes before the court as a middle aged man with no prior convictions and who suffers from a series of mental and medical conditions that in combination impair both his quality of life and physical capacity.

Each of these circumstances is relevant as subjective considerations. They are not either individually or in combination substitutes for the necessity to adequately punish the offending. Nonetheless a court is required to take into account considerations pertaining to an offender's health to determine whether imprisonment would be more burdensome for the individual before the Court than other offenders.

However, as the Court observed in R -v- Vachalec [1981] 1 NSWLR 351 at 353 and 354: "Ill health cannot be allowed to become a licence to commit crime, nor should offenders expect to escape punishment because of the condition of their health. It is the responsibility of the correctional services authorities to provide appropriate care and treatment of sick prisoners and the court will not interfere."

I have no evidence before me that this view cannot be accommodated were the offender to be sentenced to full time imprisonment. I do have the reality before me that his mental and medical conditions, both of which have been in existence long before his involvement in criminal activity, did not impair his involvement in the offending before for which he is before the Court for sentencing. There is no evidence before me that in line with the observations made in R -v- Smith (1987) 44 SASR 587; imprisonment will have a gravely adverse effect on the offender's health. If there is to be a degree of mitigation in the sentence because of his particular medical circumstances it can be reflected in a variation between the standard relationship between the head sentence and the non-parole period not in a decision to remove imprisonment as an outcome R -v- Sellen (1991) 57 A Crim R 313.

There can be no real argument that the two more serious offences, affected as they are by the matters on the Form 1, do not warrant condign punishment. General and particular deterrence both have a significant part to play in matters of this nature. So too does denunciation. The community must be made aware that recourse to the illicit acquisition of firearms, ammunition and prohibited drugs for the purpose of supply will result in deterrent sentences and where the risks in the commission of either or both are significant, the imposition of terms of imprisonment.

I have already indicated that I am prepared to deal with the protected fauna charges by way of monetary penalties but here too is a need for general deterrence. The financial penalties need to be sufficiently onerous to demonstrate a deterrent purpose.

Taking into account the foregoing for the offence of possessing an unauthorised firearm the offender is convicted. Having concluded pursuant to Section 5 of the Act that no other alternative than imprisonment is appropriate the appropriate sentence for an offence of this nature where the circumstances of potential threat to public safety are so manifest and the intended purpose for the unauthorised possession of the firearm is so severe is a term of imprisonment of 2 years. The offender is entitled to the statutory discount of 45%. He is sentenced to imprisonment for a period of 1 year 1 month and 6 days.

For the offence of knowingly take part in the supply of a prohibited drug the appropriate sentence is one of 8 months. The offender is entitled to a discount of 45%. He is sentenced to imprisonment for a period of 4 months and 12 days.

Before turning to the protected fauna offences it is appropriate to return to the submission made by counsel for the offender that any sentence of imprisonment be suspended pursuant to Section 12 of the Crimes (Sentencing Procedure) Act 1999. The approach to be taken in relation to considering the question of suspending a sentence of imprisonment is set out in R -v- Zamagias [2002] NSWCCA 17 at [28]: "… 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"

and further at [32] " a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognized that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment."

However, it is clear from the observations of Wood CJ at CL in R -v- Taylor [2000] NSWCCA 442 that a suspended sentence is generally not appropriate where the paramount consideration on sentence is general deterrence. Such is the case in the matters before me. I decline to exercise my discretion to suspend the sentence. I similarly decline to consider the alternative of Periodic Detention.

Having reached this decision I turn to the issue of whether the sentences imposed ought be served concurrently or on a wholly or partially cumulative basis. In approaching this task the court is required to apply the principles of totality. As established in R -v- Pierce (1998) 194 CLR 610 at [45] the ultimate penalty imposed must be appropriate to the totality of the offender's conduct and his personal circumstances.

In taking this approach however, as the Court said in R -v- MAK [2006] NSWCCA 381 at [18] " A sentencing court must however take care when applying the totality principle. Public confidence in the administration of justice requires the court to avoid any suggestion that what in effect is being offered is some kind of discount for multiple offending."

In line with the authority in Postiglione -v- R (1997) 189 CLR 295 at 308 I am of the view it is an appropriate exercise of discretion " to adjust the sentences downward to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences".

Before addressing this issue I turn to the question of whether special circumstances exist such that they justify the exercise of discretion under Section 44(2) of the Act to vary the statutory relationship between the head sentence and the non-parole period. There are many examples in which ill health or disability can lead to a finding of special circumstances. Sentencing Bench book p.4655 In considering this aspect it remains important however to have regard to the seriousness of the offence, the need for protection of the community and whether the illness was in existence at the time of the offence.

The documentation provided to the court establishes that the illnesses the offender sought to rely upon to mitigate the penalty and in support of the submission that any sentence be suspended was in existence at the time of commission of the offences. I have already noted that fact. This does not mean that the court cannot nonetheless find that special circumstances exist based on the offender's health. It is simply one of the considerations to be weighed in the balance. Having addressed that balancing exercise I do find that sufficient weight can be given to this issue to exercise my discretion to vary the statutory relationship. I also find for the same reason that the sentence in relation to the charge of knowingly taking part in the supply of a prohibited drug is to be served concurrently with the other sentence imposed this date.

I formally sentence the offender to imprisonment on charge 4 for a period of 1 year 1 month and 6 days commencing on 18th August 2010. This date is nominated on the basis that the offender spent 6 days in custody prior to his release on bail. The Act requires me to take this fact into account. In the exercise of my discretion pursuant to Section 44(2) of the Act the non-parole period is to expire on 25th January 2011, that is a non-parole period of 5 months and 8 days. Thereafter the offender may be released on parole for the balance of the sentence of 7 months and 29 days subject to supervision by the Probation and Parole Service. The sentence will expire on 23rd September 2011.

The offender is sentenced to imprisonment for a period of 4 months and 12 days in relation to the charge of knowingly take part in the supply of a prohibited drug. That sentence is to commence on 18th August 2010 and be served concurrently with the other sentence imposed this date.

Turning to the protected fauna offences I reiterate that they fall within a two level hierarchy of seriousness warranting a differentiation in the relative financial penalty. They are also subject to reduction for the statutory discount.

For the less serious offence involving the unauthorised possession of the two corn snakes the appropriate penalty having regard to the objective seriousness of the offence and the subjective circumstances relevant to the offender a fine of $4,000 reflects the appropriate penalty. Applying the discount the offender is convicted and fined $2,200 for this offence.

For the more serious offence the appropriate penalty would have been one of a fine of $25,000. Applying the discount the offender is convicted and fined $13,750. I decline in each case to make any order for court costs.

Graeme Henson Chief Magistrate 24th August 2010

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Judgment (74 paragraphs)

Cases Cited (16)