Prculovski v R

Bowden v The Queen [2009] NSWCCA 45 Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 CASES CITED : R v Cheikh [2004] NSWCCA 448 R v Henry & Others [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v MMK (2006) 164 A Crim R 481; (2006) NSWCCA 272 R v Wilhelm [2010] NSWSC 378 Thorne v The Queen [2007] NSWCCA

PARTIES: Goce Prculovski - Applicant Crown - Respondent

COUNSEL: Mr T Gartelmann - Applicant Mr J Pickering - Crown

SOLICITORS: Applicant - William O'Brien & Ross Hudson Solicitors Crown - Director of Public Prosecutions

• 15 - IN THE COURT OF CRIMINAL APPEAL 2009/10240

McCLELLAN CJ AT CL SCHMIDT J HOWIE AJ WEDNESDAY, 1 DECEMBER 2010 PRCULOVSKI v R

JUDGMENT 1 McCLELLAN CJ: I agree with Schmidt J and the extra remarks of Howie AJ. 2 SCHMIDT J: The applicant seeks leave to appeal against sentences imposed by Goldring J in the District Court on 14 August 2009. He pleaded guilty and was sentenced as follows:

Section 62(1)(b) - Firearms Act 1996 - possess shortened firearm without authority - maximum penalty 10 years. Sentenced to a fixed term of 2 years from 28 November 2008 to 27 November 2010

Section 25A(1) - Drug Misuse and Trafficking Act 1985 - supply prohibited drugs on an ongoing basis between 11 June 2008 and 10 July 2008 - maximum penalty 20 years. 11 matters were taken into account on a form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999. Sentenced to a non parole period of 2 years 3 months from 28 August 2009 to 27 November 2011 and a parole period of 2 year and 3 months from 28 November 2011 to 27 February 2014 (taking into account the 11 matters on the Form 1).

Section 25(1) - Drug Misuse and Trafficking Act 1985 - supply prohibited drug on 17 July 2008 - maximum penalty 15 years. Sentences to a fixed term of 2 years from 28 August 2009 to 27 August 2011.

Section 25(1) - Drug Misuse and Trafficking Act 1985 - knowingly take part in supply of prohibited drug on 23 July 2008 - maximum penalty 15 years. Sentences to a fixed term of 2 years from 28 August 2009 to 27 August 2011.

3 The eleven Form 1 offences were: - Knowingly take part in the supply of a prohibited drug, 10 June 2008; - Possess ammunition, 18 November 2008; - Not keep firearm safely, 18 November 2008; - Possess unregistered firearm (long barrelled air rifle), 18 November 2008; - Possess Prohibited Weapon (butterfly knife), 18 November 2008; - Possess Prohibited Weapon (knuckle duster), 18 November 2008; - Possess Prohibited Drug (methylamphetamine 1.98 grams), 18 November 2008; - Possess Prohibited Drug (4-Bromo-2,5 dimethoxyphentylamine); - Possess Prohibited Drug (cannabis 5.1 grams),18 November 2008; - Possess Prohibited Weapon (Imitation self loading pistol), 18 November 2008; and - Possess Prohibited Weapon (Imitation self loading pistol), 18 November 2008;

4 The total combined sentence imposed was 5 years and 3 months, with a non-parole period of 3 years.

Grounds of Appeal 5 Two grounds of appeal were initially brought, but the only ground finally pressed was:

"1. The judge erred in finding that the offences were aggravated by reason of being committed: (a) as part of planned and organised criminal activity; and (b) for financial gain."

Circumstances 6 Agreed facts were tendered and the applicant also gave evidence. The charges were the result of a police investigation in which the applicant was approached by police operatives. The ongoing supply charge under s 25A(1) of the Drug Misuse and Trafficking Act 1985 related to methylamphetamine provided in five supplies over some months. The applicant initially supplied an '8-ball' found to contain 3.4 grams of methylamphetamine for $1100. The second supply was an '8-ball' found to contain 3.41 grams of methylamphetamine for $1200. The third supply was an '8-ball' found to contain 3.2 grams of methylamphetamine for $1200. The fourth supply was an '8-ball' found to contain 3.1 grams of methylamphetamine for $1200. The fifth supply was two '8-balls' found to contain 6.6 grams of methylamphetamine for $2100. The s 25(1) charge relating to 17 July 2008 involved the supply of some 26.1 grams of methylamphetamine for a payment of $7,000 and that relating to 23 July, the supply of some 27.1 grams for another payment of $7,000. 7 After arrest, during a search of the applicant's home, drugs and a large amount of drug paraphernalia, including 'ICE' pipes, scales, resealable plastic bags and weapons were found. This led to the laying of other charges. 8 The applicant's evidence was that his problems began with the death of his father and the breakdown of his marriage shortly afterwards, when he started using cannabis and gradually began using heavier drugs, to which he became addicted. He came to have financial difficulties when he could not support his drug habit and began selling drugs to pay off his debts. He was given drugs for free, to support his habit, which had grown to some $400 a day or three and a half thousand dollars a week. He explained that he was selling drugs to support his habit and to earn pocket money and to support a gambling habit. The applicant explained the weapons found at his home in this way:

"I used to go hunting with my dad from a young kid, I studied martial arts, kept weapons from martial arts and from a kid my dad took me shooting in the bush and he had a firearm licence he held and I kept them like for souvenirs and that like, for myself." 9 The applicant claimed that he had never fired the shortened weapon and was aware that holding a firearms license required that weapons be kept in a safe place. He explained that he had failed to do so, having intended to keep the firearms 'on a board and keep a memento, like just mount or place them in a cabinet and glass it and just keep it as a memento'. He agreed that this would not have made them securely stored. The applicant was not cross examined on this aspect of his evidence. 10 The applicant had undertaken a number of drug and alcohol courses in custody. A report from Dr Westmore recounted a $500 a day ICE habit acquired in the aftermath of his father's death and the breakdown of his marriage. The applicant told Dr Westmore that he had a previous charge for cannabis and amphetamine possession and a stolen goods charge. He claimed to be only a runner for others arrested and charged in connection with this drug operation. Dr Westmore's opinion was that the applicant had developed a pathological grief reaction with a co-morbid depressive illness, probably a major depression, following the death of his father, which resulted in a dramatic change to the course of his life. He assessed the applicant's long term prognosis from a forensic viewpoint to be quite good, if he could enter sobriety from illicit drugs. He needed help to move away from the drug subculture and recommended that a strictly supervised drug programme be undertaken.

Ground 1 - The judge erred in finding that the offences were aggravated by reason of being committed (a) as part of planned and organised criminal activity and (b) for financial gain 11 The applicant's case was that his Honour erred in finding as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, that:

"The circumstances which aggravate this offence, in my view, are that this was part of planned [and] organised criminal activity committed for financial gain ..."

12 It is an element of the offence under s 25A(1) Drug Misuse and Trafficking Act that the supplies are for financial gain or reward. The section provides: "25A Offence of supplying prohibited drugs on an ongoing basis (1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both. 13 It was common ground that in a s 25A offence, additional regard may not be had to financial or material reward as an aggravating matter pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act (see Bowden v The Queen [2009] NSWCCA 45). The alleged error was not, however, conceded. 14 While the Crown accepted that if his Honour's remarks were directed to the s 25A offence that his Honour erred, it was argued that it was apparent from the balance of his Honour's remarks, that when referring to financial gain, he had in mind the two s 25 charges. Those remarks revealed that his Honour was mindful of the need not to 'double count', when he observed that:

'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.

Consideration 20 It seems to me that the applicant has failed to establish that his Honour erred, either in finding that the offences were aggravated by reason of being committed as part of planned and organised criminal activity, or that they were for financial gain. 21 The sentencing exercise had to be conducted in accordance with the requirements of s 3A of the Crimes (Sentencing Procedure) Act. It provides: " 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."

22 The fundamental principle underpinning the sentencing exercise is that the sentence imposed must reflect the objective seriousness of the offence and that there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]). 23 The question of whether his Honour erred in taking into account financial gain as an aggravating factor in the s 25A offence cannot determined simply by having regard to his Honour's remarks on sentencing. Whether his Honour committed the error alleged is not apparent from what he there said, which on any view was perplexing. What he intended by the remarks to which the parties referred is not apparent. Nevertheless, I am not convinced that this, or indeed the other errors alleged were made. 24 The penalty of 4 years and 6 months, with a non-parole period of 2 years and 3 months which his Honour imposed for the s 25A offence does not support the conclusion urged for the applicant. On the applicant's own evidence these drug offences were committed for financial gain and as the result of the applicant's involvement in a well planned drug operation, albeit as a lower rung operative. Albeit for different reasons, this evidence was relevant to all of the drug offences with which the applicant was charged. 25 As discussed in R v Cheikh [2004] NSWCCA 448 at [105] in relation to a s 25A offence:

"... Parliament has chosen to define the offence by reference to the time span of a month. An offender enhances his criminality by choosing to continue his activities month by month." 26 The maximum penalty for this offence was 20 years. The sentence imposed had to have regard to the nature of the five supplies in question, the aggravating and mitigating factors revealed on the evidence and also had to take into account 11 other offences on the Form 1, including one which itself attracted a maximum 15 years sentence. 27 The sentence imposed was not high, given the objective and subjective matters which had to be taken into account. Had his Honour wrongly approached the sentencing exercise by finding that this offence was aggravated by an element already contained in the offence, or which was an inherent characteristic of the offence, the penalty imposed would have been higher. 28 His Honour was obliged to have in mind the number of supplies, five, and what was supplied, in total nearly 20 grams of methylamphetamine for which some $6,800 was paid, as well as the subjective factors revealed on the evidence. They went to the applicant's psychological state in the aftermath of his father's death, which led him into drug use and eventually the commission of these crimes. In taking account of these matters his Honour was obliged to bear in mind what Spigelman CJ observed in R v Henry & Others [1999] NSWCCA 111; (1999) 46 NSWLR 346 after discussing the authorities which had considered whether drug addiction could be regarded as a mitigating factor: "202 There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money."

29 The effect of asking the Court to take the eleven offences into account on the Form 1 was that the total sentence imposed could 'not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account' (s 33(3) of the Crimes (Sentencing Procedure) Act). Nevertheless, the sentence imposed had to reflect the totality of the criminality involved. 30 Given the nature of the eleven Form 1 offences, one of which itself carried a maximum term of 15 years, the penalty imposed for the s 25A offence unquestionably had to be increased more than by merely a nominal amount. As Spigelman CJ explained in Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518, 56 NSWLR 146 at [42]:

"42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."

31 The weapon offences on the Form 1 had to be considered in the light of what seemed to be an entirely spurious explanation advanced by the applicant. While the explanation was not challenged in cross examination, it was not one which his Honour was obliged to accept. He was entitled to take a serious view of these offences. So understood, I cannot see that his Honour committed the errors alleged, given the penalty imposed. Nor did the statistics relied on reveal obvious error. To the contrary, the statistics were particularly unhelpful in this case, given the eleven offences on the Form 1 which the applicant asked to have taken into account on sentence. As explained by Wood CJ at CL in R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 at [30] - [31]:

"30 When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL.

31 There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose."

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:

"27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

38 In this case the s 25A offence related to five supplies between 11 June 2008 and 10 July 2008 and by the Form 1, a further offence involving a supply on 10 June was taken into account, as well as 10 other offences. The two s 25 offences were committed on 17 July and 23 July and plainly involved entirely separate acts of offending and yet the applicant received entirely concurrent sentences for all of these offences, and for the weapons offence, apart from a period of 9 months. That being so, it is apparent that for this additional reason, the conclusion that some other sentence is warranted for these offences as a matter of law is not open.

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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