Prculovski v R

Prculovski v R - [2010] NSWCCA 274 - NSWCCA 2010 case summary — Zoe

[25]

'most of the other factors mentioned in s 21A (2) are in fact elements of the offence'. 15 In oral submissions it was accepted for the applicant that if the submission advanced was correct, that it would logically follow that his Honour had failed to consider this aggravating factor in relation to the two s 25 offences, for which fixed terms of two years were fixed in both cases. 16 As to planning and organisation, the applicant's case was that it was inherent in an offence of supplying drugs on an ongoing basis, that it is committed as part of planned and organised criminal activity. The applicant also argued that the quantities of drugs involved in these offences were commonly described as 'street level' and that the evidence did not establish that there must have been any significant planning or organisation involved in their commission. It followed that the finding that the offences were aggravated by reason of being part of planned and organised criminal activity and for financial gain was erroneous. 17 The Crown disputed this, arguing that such offences could be carried out with little or no planning and that supply offences need not be carried out for financial gain (see R v Wilhelm [2010] NSWSC 378). In this case the charges were concerned with significantly more than a 'street deal'. The facts revealed a methodical and organised participation in a professionally run drug operation. It followed that his Honour was entitled to take these factors into account. 18 The applicant also relied on statistics maintained by the Judicial Commission of New South Wales, which showed that of 270 offences, 77% resulted in terms of full-time imprisonment, with a median term of 3 years. In only 10% of cases was a term as great as that here imposed. 218 offenders were sentenced to non-consecutive terms of imprisonment, with a median non parole period of one year and six months. Only 13% of cases had non-parole periods as great as that imposed in this case. 19 The Crown argued that these statistics were unhelpful, particularly given that in the s 25A offence, eleven other offences had to be taken into account in determining penalty. It was also argued that if it was concluded that this ground of the appeal was upheld, it would nevertheless be concluded that no other sentence was warranted at law.

[34]

32 The statistics relied on shed no light on the nature of the offences in question in other cases, nor whether any sentences imposed resulted from a consideration of other offences taken into account under a Form 1 and if they did, what offences they were. 33 The two other drug offences carried maximum terms of 15 years. Two year terms made totally concurrent with the s 25A sentence were imposed in each case. Again, having in mind the matters which had to be weighed in the balance, that the sentences imposed for the two s 25 offences was the result of the errors alleged is not apparent. To the contrary, that these offences were committed as part of planned and organised criminal activities and for financial gain were matters which his Honour was entitled to take into account. 34 It may also not be overlooked that the penalties imposed were a part of the overall sentencing exercise, structured as it was as the result of the application of the principle of totality. The firearm offence carried a maximum term of ten years, with a 2 year term also imposed, 9 months of which was cumulative. The two s 25 offences were made totally concurrent with the s 25A offence. The overall penalty imposed was 5 years and 3 months, with a non-parole period of 3 years. On any view the overall sentence was also a lenient one, given the maximum penalties for the offences in question and the evidence as to the aggravating and mitigating factors necessary to be taken into account in respect of those offences. That, too, supports the conclusion that his Honour did not err by finding that the s 25A offence was aggravated by an element already contained in the offence, or which was an inherent characteristic of the offence, or that he wrongly took into account that the offences were committed for financial gain. 35 Given the objective seriousness of these offences and the subjective matters which his Honour also took into account, that it is not open to conclude that some other, lower sentence is warranted as a matter of law, for these offences as the Crown argued, must also be accepted. Before interfering with a sentence imposed, that is a conclusion which s 6(3) of the Criminal Appeal Act 1912 requires that the Court be able to reach. In my view it is a conclusion not available in this case, in respect of any individual offence. 36 That view is also reinforced when consideration is given to the overall sentence imposed, of 5 years and 3 months with a non-parole period of 3 years. The applicant has clearly had the benefit of a very lenient sentencing exercise, particularly given that the sentences imposed for the two s 25 offences were made completely concurrent with the sentence imposed on the s 25A offence. The only effective accumulation was the 9 months which flowed from the firearms offence. The structure adopted was unquestionably generous from the applicant's point of view, particularly given the criminality involved in the s 25A offence and the 11 offences taken into account in that offence. 37 His Honour had to ensure that the result of the application of the totality principle was not that the applicant escaped effective punishment for the discrete offences involved in his criminal behaviour. Even in a case where it is concluded that a sentence imposed on another offence arising out of the same incident is to be served wholly concurrently, there may be error, because the sentence does not reflect the totality of the offending. (See R v MMK (2006) 164 A Crim R 481; (2006) NSWCCA 272 at [13] and Thorne v The Queen [2007] NSWCCA 10 at [88].) That was not this case. In Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41, it was explained that:

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Orders 39 For these reasons, I would order that leave to appeal be granted, but the appeal be dismissed. 40 HOWIE AJ: I have read in draft the judgment of Schmidt J. I agree with the orders her Honour proposes and her reasons. I wish to make a brief additional comment. 41 The sentences imposed upon the applicant verged, in my opinion, on the inadequate. It was an error of principle to impose concurrent sentences for the two supply offences. The accumulation of only 9 months for the firearm offence was also extremely lenient. The applicant's explanation for his possession of the weapon could not be seriously accepted in light of the other objects found in his possession and that were listed in the Form 1. 42 The sentence imposed for the s 25A offence barely reflected the objective seriousness of the conduct that gave rise to that offence. Although the amount of drug supplied does not necessarily determine the seriousness of an offence under that section, it can be a very significant factor. In the present case the amounts supplied were not "street deals". The applicant was in the middle level of the hierarchy of drug trafficking so far as the quantity of each supply was concerned and the overall amount supplied. It was in total about 16 grams, that is more than three times the indictable quantity. Each supply was of a traffickable quantity. Further, the offences on the Form 1 contained serious firearms and weapons offences that should have increased the penalty imposed for the s 25A offence. 43 It is not necessarily an error to take into account, when sentencing for a s 25A offence, either that the offence was committed for financial gain or that it involved planning. Where the financial gain or the planning is significant, that is more than might be expected in the lowest level of offending for this type of offence, the court is entitled to take that fact into account as a matter of aggravation. Here the amount received for the sale of drugs in the s 25A offence was $8,800. While not a substantial sum, it was considerably more than would be received for the supply of "street deals". Minds might differ as to whether that amount aggravated the offence or the degree to which it would increase the seriousness of the offending. But it was open to a court to treat as a matter of aggravation. 44 So far as planning was concerned, it would, in my opinion, have been open to a court to find that this was one step up from the type of conduct that is found in the lowest form of the offending, for example a person who supplies at a street level or in licensed premises to users of the drug. Here an order was placed and filled by the applicant from the person next up the rung. The other two supply offences showed that he applicant and his supplier were prepared to supply at a higher level if requested to do so. 45 As Schmidt J shows it is not clear to which offence or offences his Honour's remarks about planning or financial gain were directed. But I would not conclude in the circumstances of this case that it was an error for the judge to take into account the level of financial gain involved and the level at which the applicant acted as part of an established drug trafficking organisation. In any event, as Her Honour points out, the sentence imposed does not reveal that the sentencing judge treated them as seriously aggravating factors in determining the penalty for the s 25A offence. **********

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