R v Mucenski

The application 11 In this Court the applicant was represented by Ms Bashir of counsel, who did not appear in the District Court. In written and oral submissions she raised a number of matters, but the principal focus of the oral argument was the marked disparity between the applicant's sentence and that passed upon Ms Collins. She also was nineteen years old at the time of the offence. She had no prior convictions. She also had a disturbed upbringing, and it seems that she became emotionally dependent upon the applicant, whose family accepted her and welcomed her into their home. However, after their arrest for the ongoing supply charge she terminated the relationship, gained steady employment and generally adopted a more stable lifestyle. She also expressed remorse for the offence and, as I have said, pleaded guilty at the earliest opportunity. 12 Not surprisingly, it emerged from the whole of the evidence that the transactions the subject of the charge of ongoing supply were part of a wider pattern of drug dealing, extending over several months, in which the applicant and Ms Collins were involved. It was her case that she participated because he was verbally aggressive and threatened her with violence, although he never in fact inflicted violence upon her, and that her role was to drive him to locations where drugs were to be sold because he had lost his licence. 13 However, in oral evidence, she acknowledged that she sometimes took calls about drug deals on the mobile phone, but only because he instructed her to do so. She said that he directed her to conceal drugs in her underwear, telling her that the police would be unlikely to search her if his activities came under investigation. She also acknowledged having derived some benefit from the drug dealing, through expenditure on clothing, food and entertainment. 14 The applicant also gave evidence. He acknowledged that he had been abusive on occasions during the relationship, but denied having threatened Ms Collins. He said that she also was using drugs extensively and, indeed, that his involvement in drug dealing was to finance the abuse of both of them. She denied this, saying that she used nothing but ecstasy and then only recreationally. He also said that she had a gambling problem, but this also she denied. Generally, the effect of his evidence was that she was a more willing participant in the course of dealing than she was prepared to admit. 15 The Crown's representative in the District Court (who also did not appear before us) submitted that the applicant and Ms Collins were equally involved in the charge of ongoing supply, and that fulltime custodial sentences should be passed upon both of them. However, his Honour accepted her evidence, concluding that she "would have remained a law abiding citizen but for the intrusion into her life of the co-offender" and that "this is his crime and … she was his tool in the execution of it." He considered that she had a good prospect of rehabilitation and, on the whole of the evidence, found that there were exceptional circumstances justifying a disposition other than fulltime custody. 16 In its appeal against Ms Collins' sentence the Crown challenged those favourable findings, but this Court held that they were open on the evidence. It was upon that basis that the Crown prosecutor before us approached the present application. Ms Bashir complained that, in the course of cross examination of Ms Collins by the applicant's legal representative in the sentence proceedings, his Honour wrongly rejected a question and that this had the effect of curtailing a proper exploration of her role. This does not appear to me to be the case from my examination of the transcript but, given the view I have formed about the outcome of the application, I find it unnecessary to decide the matter. 17 Obviously, given Ms Collins' favourable subjective case and his Honour's findings about her role in the offence, a measure of disparity between the sentence passed upon her and that upon the applicant was called for. Nevertheless, I am persuaded that the marked difference between their sentences is such as to lead to a justifiable sense of grievance on his part. In so saying, I am mindful of his criminal record and the fact that he was on a bond at the relevant time. I am also mindful of the fact that, in practical terms, the six year sentence passed upon the applicant embraces the criminality of the offence of unlawful possession of a firearm, as well as the cannabis offences on the Form 1. However, the cannabis offences were minor and it was the applicant's unchallenged evidence that the firearm offence related to a plastic "BB" replica pistol worth $30 to $40. 18 In my view, a sentence of six years imprisonment on the applicant and of three years, to be served by way of periodic detention, upon Ms Collins cannot be justified by the distinction between their cases. Particularly is this so given the marked degree of leniency inherent in a term of periodic detention, which this Court has long recognised: R v Hallocoglu (1992) 29 NSWLR 67, per Hunt CJ at CL at 73. Accordingly, the applicant's sentence must be set aside and this Court should decide for itself the appropriate sentence. 19 It becomes unnecessary, then, to determine Ms Bashir's other complaints about the sentencing process. Put shortly, it was her argument that the six year sentence was manifestly excessive and failed to afford appropriate weight to the applicant's age, his drug addiction at the relevant time, his prospect of rehabilitation, his plea of guilty and his remorse. I would say no more than that, in the light of all those factors, the sentence was undoubtedly severe. 20 Reference has been made in these reasons to such matters of aggravation or mitigation, within the meaning of s 21A of the Crimes (Sentencing Procedure) Act, as are applicable to the case. An important aggravating feature, of course, is the fact that the applicant was subject to conditional liberty at the time of these offences. Further in mitigation, we received affidavit evidence from the applicant attesting to his continued progress towards rehabilitation. He has remained drug free, he has been furthering his general education and undergoing various behavioural courses, and he continues to look forward to employment with his brother upon his release. He deposes that he has had time to reflect upon his past life, that his outlook on life has changed for the better and that he is determined not to re-offend. 21 Taking all relevant matters into account apart from his plea of guilty and his remorse, I would sentence the applicant on the ongoing supply charge to imprisonment for five and a half years. His entitlement to leniency for his remorse must be tempered by the undoubted strength of the Crown case against him. For his plea of guilty and remorse I would reduce that sentence by 20 per cent, producing a rounded off figure of four years and four months. I would find special circumstances, warranting a departure from the usual proportion between head sentence and non-parole period, in his youth, his prospects of rehabilitation and the fact that this is his first custodial sentence. Mindful that the non-parole period must still reflect considerations of retribution and deterrence, I would fix a period of two and a half years. 22 In my view, such a sentence bears an appropriate relationship to that passed upon Ms Collins. We were not asked to re-examine the sentence on the charge of unauthorised possession of a firearm. I would confirm that sentence, which would remain wholly concurrent with the sentence on the drug charge. 23 Accordingly, I would propose the following orders: