R v Dusan Krstic

R v Simpson(2001) 53 NSWLR 704 CASES CITED: R v Fidow [2004] NSWCCA 172 R v Martin [2005] NSWCCA 381

Crown - Respondent PARTIES: Dusan Krstic - Applicant

Crown - G Rowlings COUNSEL: Applicant - G Jones

Crown - S Kavanagh SOLICITORS: Applicant - Mr David Leamey

IN THE COURT OF CRIMINAL APPEAL 2005/1941

SULLY J HULME J LATHAM J

1 SULLY J: I agree with Latham J. 2 HULME J: I agree with Latham J. 3 LATHAM J: The applicant, Dusan Krstic, pleaded guilty at Wollongong Local Court on 25 August 2004 to one count of possess prohibited pistol, pursuant to s 7(1) of the Firearms Act 1996. That offence carries a maximum penalty of 14 years' imprisonment. A standard non-parole period of 3 years applies to the offence under s 54A-D Crimes (Sentencing Procedure) Act 1999. When sentenced by his Honour Judge Phelan (the Judge) on 15 February 2005, the applicant was also sentenced in relation to 4 further offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986. Those offences were goods in custody, possess ammunition, possess restricted substance being steroids and possess prohibited drug being methylamphetamine. 4 On the charge of possess prohibited pistol, the applicant was sentenced to a non-parole period of 2 years to date from 1 June 2004 expiring on 31 May 2006, with an additional period of 8 months to date from 1 June 2006 and to expire on 31 January 2007. On the goods in custody charge, the applicant was sentenced to a fixed term of 2 months' imprisonment to commence on 1 June 2004. On the possess ammunition charge, the applicant was sentenced to the rising of the Court and on each of the possess restricted substance and possess prohibited drug charges the applicant was fined the sum of $50. The applicant seeks leave to appeal against the sentences imposed. 5 Whilst the grounds of appeal, as filed, nominated a number of individual errors allegedly made by the Judge, these grounds were distilled on the hearing of the appeal to 2 major grounds, namely:

(i) That the Judge erred in his assessment of the objective gravity of the firearms offence. The thrust of the submission in support of this ground of appeal was that the Judge treated the offences on the s 166 Certificate as in some way aggravating the firearms offence.

(ii) That the Judge erred in failing to find special circumstances. 6 The facts giving rise to the charges were set out in the course of an agreed statement of facts. In brief terms, the applicant was observed by police in the course of a journey from his home to the Wollongong Police Station, where he was required to report, pursuant to conditions imposed by the Department of Immigration. The applicant was arrested as he entered the foyer of the police station. His vehicle was searched, during which the police retrieved a Thompson brand Colt .45 calibre self-loading hand gun. The gun was loaded with seven bullets in the magazine. It was in working order and comes within the definition of a prohibited pistol, pursuant to s 4C of the Firearms Act 1996. The seven cartridges found in the magazine are ammunition as defined in s 4(1) of the Firearms Act 1996. The firearm was found within the unlocked console of the locked vehicle. Police also located a Motorola portable radio that had been stolen during a break-in at the Helensburgh Fire Station. 7 Later that day, police searched the applicant's residential address and found a number of items including a firearm magazine containing a .45 calibre bullet, one Winchester box containing twelve .45 calibre bullets, one 20ml bottle of stanazol, one 10ml bottle of stanazol, other bottles containing a prescribed restricted substance (steroids) and four small yellow tablets analysed as methylamphetamine. The applicant was interviewed by police and declined to make any comment regarding his knowledge of the firearm. 8 As at the date of the offence, the applicant was on conditional release from the Villawood Detention Centre, having entered Australia illegally (Ex 2). Following the applicant's arrest on the day of the offence, bail was refused.

Ground 1 - Assessment of the Objective Gravity of the Offence 9 The applicant's complaint in respect of this ground rests upon the following passage in the Judge's remarks on sentence (p 6): "The various offences for which he is to be dealt with pursuant to s 166 suggest that he moves at least on the fringe of criminality. The loaded firearm and his refusal to discuss his reasons for having it other than hinting at reprisals is consistent with a sinister rather than an innocent purpose. His desire to stay in this country should have motivated him to avoid criminality. He was clearly acting in a way prejudicial to that ambition." 10 Allied to this comment is an earlier reference to the pre-sentence report tendered on sentence (Ex 2), wherein the following appeared: "Mr Krstic appears to minimise his involvement in these offences except for possession of the loaded weapon. He stated he had the gun in his car for his own protection which was reiterated by his wife. The offender added that on release from Villawood Detention Centre he was "threatened" as there was a rumour that he was working with the Australian Federal Police and he was warned he might be targeted." 11 It was submitted that the Judge was not entitled to find that the applicant "moved on the fringe of criminality", nor that his possession of the loaded firearm absent any cogent explanation, was "consistent with a sinister rather than an innocent purpose". According to the applicant, the offences on the s 166 certificate could not be regarded as relevantly related to the possess firearm offence, so as to justify any assessment of the applicant's criminality in the terms outlined by the Judge. It was further contended that his Honour was not entitled to call into question the explanation for possession of the firearm which the applicant had provided to the Probation and Parole Officer. The applicant's counsel asserted on the hearing of the appeal that the Crown did not contest that explanation and that therefore the Judge was bound to accept it. In support of that submission, we were referred to p 8 of the transcript of the sentencing proceedings on 12 November 2004. On that day, the applicant's counsel handed up an outline of submissions which contained a summary of the applicant's and his wife's account in respect of his possession of the firearm. In response to that material, the Crown representative is quoted as saying: "I have no objection to that material, your Honour". 12 The balance of the transcript of the sentencing proceedings, in particular on 11 February 2005, do not support counsel's submission in this regard. At p 12 of that transcript, the applicant's counsel responds to the written submissions filed on behalf of the Crown. Those submissions included an invitation to the court to infer "that the possession of the weapon was to assist the offender with criminal activity". The applicant's counsel then alerts the Judge to the state of the evidence and argues essentially that such an inference or a finding of fact would not be available to the requisite standard. 13 The Judge did not in fact find the weapon was in the possession of the applicant to assist him with criminal activity. In my view, he was entitled to doubt the applicant's explanation for the possession of the weapon, particularly in the light of the applicant's possession of restricted and prohibited substances and in circumstances where that explanation was of a hearsay nature. The Crown's submission was an appropriate one in the circumstances of this case, albeit the Judge refrained from embracing it. 14 In any event, accepting the applicant's argument for present purposes, possession of a loaded gun for one's own protection is not a matter of significant, if any mitigation, since the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years' imprisonment is to deter and punish possession of firearms per se. The applicant arrived in Australia in 1996. His family, then consisting of his wife and 2 children, appear to have preceded him. The applicant's supervision by the Immigration authorities continues, pending approval of a spouse visa (Ex B). In these circumstances, it could hardly be suggested that the applicant was not acutely aware of his obligations to abide by the laws of this State, whatever the nature of his experiences in his former homeland, Serbia. 15 A number of other specific errors were identified by the applicant. It was submitted that the Judge found that the applicant appeared to minimise his involvement in the firearms offence, that the firearms offence was committed in disregard of public safety and that the firearms offence was part of a planned or organised activity. With the possible exception of the last-mentioned factor, I have no difficulty with these findings, assuming that they were made. However, it appears from a reading of the remarks on sentence, that the Judge was doing no more than setting out, almost verbatim, the contents of the pre-sentence report, and repeating the Crown submissions. Nowhere in the remarks on sentence does the Judge unambiguously accept those submissions or adopt that aspect of the pre-sentence report. It is not strictly necessary to consider these matters further, for the following reason. 16 Counsel for the applicant frankly and properly conceded that the sentence for the firearm offence, whilst towards the upper end of the range of sentences imposed, could not be said to be manifestly excessive. It follows that, even if the Judge erred in some respect, no lesser sentence was warranted in law.

Ground 2 - Special Circumstances 17 There is no complaint of any failure by the Judge to accurately and comprehensively review the applicant's subjective circumstances in the course of the remarks on sentence. It is submitted that that subjective case justified a finding of special circumstances. In particular, the applicant emphasised his age (38 at the time of sentence), and the relative difficulty of finding employment in the Wollongong area upon his release shortly prior to his 40th birthday. The applicant also relied upon the fact that the sentence represented his first experience of custody. 18 As to the applicant's prospects of employment on release, the only evidence before the Judge on this aspect of the matter was contained within the pre-sentence report. The applicant informed the officer that he was not employed at the time of his arrest, but was spending time with a friend who was teaching the applicant about the building industry. The applicant's godfather was supporting the family financially and it was the applicant's hope that his godfather would also finance the applicant in the establishment of a building business. It would appear from the evidence that the applicant had no intention of making himself available to the Wollongong labour market. 19 As to the fact that this was the applicant's first experience of custody, the question is whether that circumstance justified a lower proportionate relationship between the non-parole period and the head sentence. That question was one for the Judge to answer in the exercise of his discretion. This Court should be slow to interfere unless the non-parole period can be said to be manifestly excessive; R v Simpson(2001) 53 NSWLR 704; R v Fidow [2004] NSWCCA 172; R v Martin [2005] NSWCCA 381. 20 In my view, a non-parole period of 2 years was well within the Judge's sentencing discretion. Moreover, a period of 8 months provided adequate scope for the applicant's supervision on release, given his stated intention of returning to live with his family. 21 I propose that leave to appeal be granted, but that the appeal be dismissed.

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