Regina v Aslan [2005] NSWCCA 121 | Case summary

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed upon the applicant by Sides DCJ at the Campbelltown District Court. The applicant pleaded guilty to three counts in an indictment but it was noted that he had earlier made appropriate pleas of guilty before a magistrate and it was for procedural reasons only that an indictment was presented. His Honour applied a "discount" of 25 percent for early pleas. 2 The offence in count 1 charged supply a prohibited drug on an ongoing basis for which the prescribed maximum penalty is 20 years' imprisonment. Count 2 charged selling firearms on an ongoing basis contrary to section 51B of the Firearms Act which also carries a maximum prescribed penalty of 20 years' imprisonment. Count 3 charged supplying a large commercial quantity of a prohibited drug for which the prescribed maximum penalty is imprisonment for life. Also taken into account pursuant to the Form 1 procedure were six further offences. 3 The applicant was sentenced on count 1 to imprisonment for six years and six months with a non-parole period of three years and six months. On count 2, to imprisonment for eight years with a non-parole period of three years and six months, and on count 3, to imprisonment for seven years and six months with a non-parole period of four years and six months. The Form 1 matters were taken into account in the sentence imposed in relation to count 1. The dates specified for commencement and conclusion of the various sentences and non-parole periods had effect that the applicant would be in custody from 28 May 2002 and become eligible for parole from 27 May 2009, thus, there was an effective sentence of 11 years and six months with a non-parole period of seven years. 4 The offences all occurred as a result of activity by undercover police officers authorised pursuant to the appropriate statute. The commencement of the applicant's criminality can be dated from 6 March 2002 when an undercover officer referred to as "Brad" went to premises at Bradbury and spoke to one Joseph Kormos. He asked for drugs to be supplied, and in response, Mr Kormos apparently made a call as a result of which the applicant appeared and sold some 15 tablets to Brad in return for $600. 5 It might be noted that the activity involved a purported sale of drug commonly known as ecstasy, but substantially the drug actually supplied (where it was an actual drug) was methylamphetamine. The first supply which I have mentioned involved a total weight of tablets of some 5.3 grams. Later, on 14 March, Brad again went to Kormos's house and the applicant arrived shortly thereafter. An introduction was arranged later at a car park to a second undercover officer referred to as "Tony". The applicant provided Tony ultimately with an amount of drug. 6 The third action which the Crown asserted constituted the ongoing supply, took place on 19 March. On this occasion Tony bought some blue-coloured tablet for $1,800. Subsequent analysis showed that the substance was not a drug then on the schedule of prohibited drugs. 7 The fourth occasion was 26 March. On this occasion Tony purchased from the applicant some 50 tablets. The fifth occasion (all of these relating to the first count), was on 4 April when Tony bought more tablets from the applicant for a sum of $2, 500. 8 In summary over this period, a total weight of some 84.7 grams of drugs or purported drugs were supplied for a purchase price of $7,600. 9 The police investigation material included the product of listening devices, and his Honour found that it was clear on the evidence that the applicant believed that Tony was selling the drugs obtained from him to customers. His Honour found that the applicant was a wholesaler selling to another wholesaler lower down the drug trafficking hierarchy. There is no reason to think that his Honour's finding in this regard is vulnerable to any challenge, nor has it been suggested that this is so. It might be mentioned that his Honour accepted that the applicant must have been obtaining his supply from someone else and that he was earning money in effect by selling at a higher price than he was buying, however he also accepted that most of the money earned was used to fund a drug addiction of the applicant's own. 10 Three of the matters taken into account on the Form 1 involved similar transactions to those which I have described. More importantly, however, the first of those transactions occurred on 16 April when Tony asked the applicant whether or not a "shooter" could be obtained. This was a reference to a weapon. The applicant immediately responded that he was able to supply such a weapon. In short, on 19 April, 2 May, 8 May and 13 May, the applicant, on each occasion in response to inquiries for supply of weaponry, made available to Tony for large amounts of money, self-loading pistols. The first two were accompanied by supplies of ammunition. The applicant also stipulated that he could acquire more ammunition as required. All pistols were of the same calibre. The fourth delivery included a silencer. The weapons all had the serial numbers obliterated, and were obviously of the character of weapons used in criminal enterprises. 11 The third count related to a further request by Tony for a large quantity of "tablets". On 28 May arrangements were made for the applicant to meet him at what was described as the "usual meeting place" which was near a shopping centre. On this occasion the applicant arrived with a plastic bag which he transferred to Tony for an agreed purchase price of $45,000. There were 3,000 tablets in the plastic bag. The drug weighed 1,020 grams and contained 2.5 percent pure methylamphetamine. At this point, the applicant was arrested. 12 In addition to the facts which I have but briefly related, it can be noted that the final three matters on the Form 1 concern the result of search of premises on that day occupied by a Miss Broderick. There were found some cash, (reasonably suspected of being unlawfully obtained), nearly 240 grams of cannabis, and about 37 grams of methylamphetamine. In due course the applicant told police that Miss Broderick was in fact minding these items for him and that they were his property. 13 As a result of all that conduct, his Honour imposed the sentences which I have mentioned. In a helpful and succinct submission on behalf of the applicant, Mr Ramage QC raised a number of issues, the principal of which was that the total sentence imposed was unduly harsh and severe. This was particularly so having regard to the substantial accumulation of the sentence on the second count to those imposed upon the first and third counts. 14 A specific submission was made asserting that the sentencing judge was in error in taking into account matters as aggravating circumstances. In particular, his Honour had, in his remarks, observed that the applicant had provided the pistols without regard for public safety. This is a specified aggravating factor pursuant to section 21A 2(i) of the Crimes (Sentencing Procedure) Act 1999. I perceive no error in his Honour's approach to this circumstance. 15 As the Crown Prosecutor has pointed out, the concept of an offence being committed without regard for public safety is distinguishable from the concept of specifically placing the public at risk. It seems to me it is beyond argument that the supply of a lethal weapon fits the category of aggravation as mentioned in the statute. In addition, attention was drawn to remarks pertinent to this submission in R v Way 2004 60 NSWLR 168 in which it was said: "We also consider that it was appropriate for his Honour to have regarded the offence as one committed without regard for public safety (another s21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. The observations of Smart AJ in R v Chan [1999] NSWCCA 103 as to the limited relevance of the fact that drugs which are supplied to undercover agents will not reach the community, apply. As his Honour pointed out, that circumstance was not due to any act of the offender". 16 Thus from that citation, it can be seen that his Honour was correct in taking into account the lack of regard for public safety in relation to all the counts with which he was dealing, the supply of drugs as well as the supply of what I have described as lethal weapons. 17 A submission that his Honour erred in taking into account an irrelevant matter, in that the third supply which I have described, turned out not to be the drug represented was not pressed in the light of the provisions of section 40(1) of the Drug Misuse and Trafficking Act 1985: "40 (1) A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited drug or a specified prohibited drug shall, for the purposes of this Act and the regulations, be deemed to be a prohibited drug or the specified prohibited drug, as the case requires." 18 A further submission was made that the sentencing judge erred in failing to take into account the role of the police in promoting the offences. This submission, in my view, cannot be sustained. There is no evidence that the police promoted the offences except in the sense that they made inquiries first through the man Kormos as to whether drugs could be supplied. It was the applicant who turned out to be the supplier and he willingly continued to supply whenever requests were made. This is not a case where the police officers were urging the applicant to do anything that he was unwilling to do. Indeed, the evidence shows they did no more than make inquiries as a result of which the applicant all too readily met their requests. It is perhaps indicative of the applicant's ready response to even oblique requests that there is a telephone call between the undercover operative Tony and the applicant when the question of weaponry was first raised which is simply in these terms: "Tony: and he'd asked me for a shooter. Applicant: A gun? Tony: Yeah. Applicant: Yeah, I've got one. Two and, two and a half."

The lastmentioned being a quotation of price which was in the end fulfilled. $2,500 was paid in exchange for the first weapon. 19 The next specific submission was that there was lack of parity between the applicant and the co-offender Kormos. His Honour was aware that Kormos, the man whom the undercover operative had first approached, had previously been dealt with by Coorey DCJ. Kormos had pleaded guilty to four offences. He, of course, was not involved in all the offences of the applicant and in particular had nothing to do with any of the offences involving firearms. The learned sentencing judge said in his remarks on sentence that he would take into account the principle of parity (with Kormos). This must be read in the context of the minimal relationship between the offences with which Kormos was dealt and the offences for which the applicant stood for sentence. The effective sentence which Kormos received was a head sentence of four years with a non-parole period of two years. For my part, I am unable to see that the applicant can claim a justifiable sense of grievance by reason of the way he was treated when compared with Kormos. The offences of Kormos, as I have said, are not entirely parallel or even associated with all of those relating to the applicant. 20 The final two submissions were that the sentencing judge failed sufficiently to take into account subjective circumstances, and as I have earlier indicated, that the total sentence imposed was unduly harsh and severe. His Honour acknowledged that the applicant was a person without prior conviction. He was in fact near the end of a recognizance to be of good behaviour imposed for an offence of assault. No conviction had been recorded and the offence was conditionally dismissed pursuant to s 10 of the Sentencing Procedure Act. His Honour observed that it was a matter of aggravation that the applicant was subjected to that recognizance at the time of these offences. In so observing, I do not perceive that his Honour fell into any error. 21 The applicant's background was examined by his Honour. He took into account the difficulty of his family's circumstances. He observed that the applicant had himself been the victim of an apparently serious violent offence committed against him by his wife when she stabbed him in the stomach on one occasion. That relationship was however terminated, and the parties had been divorced by the time he appeared for sentence. 22 The total effective sentence imposed upon the applicant is undoubtedly a lengthy one. It merits examination, having regard to the applicant's background and the absence of prior conviction. He is some 34 years of age. He was 33 at the time he appeared for sentence. He was qualified as a mechanic and had a business of his own. I have mentioned that he had become addicted to drugs. He is the father of a small boy. This boy is residing with relatives whilst the applicant is incarcerated. Nevertheless it cannot be overlooked that the applicant needed to be sentenced for three very serious crimes. It almost suffices, in my view, to recite the facts and the prescribed background of maximum penalties to see that what his Honour has imposed lies within the range of sound exercise of discretion. 23 At first glance it may appear that accumulating the sentence for the firearms matters upon the drugs matters resulted in an overly severe impost. However, when one observes that the non-parole period specified in respect of the third count (which carried a prescribed maximum of life imprisonment) is ameliorated in the sense that the sentence for the pistol offences was directed to commence one year before the expiry of the non-parole period specified in respect of that serious drug offence, that perspective is removed. 24 The ultimate question for this Court is whether or not the sentence imposed is outside the range of his Honour's sound exercise of discretion. I have come to the conclusion that it is not. 25 I propose that application of leave to appeal against sentence be granted, but the appeal dismissed. 26 HUNT AJA: I agree with the orders proposed by Grove J for the reasons he has given. 27 HALL J: I agree with the orders as stated by Grove J and the reasons. 28 HUNT AJA: The orders are as proposed by Grove J.

Regina v Aslan

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (1)

Cited By (4)