REGINA v XX

[2009] NSWCCA 115

Court of Criminal Appeal (NSW)|2008-11-21|Before: Tobias JA, Kirby J, Hall J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2008-11-21

Before

Tobias JA, Kirby J, Hall J

Source

Original judgment source is linked above.

Judgment (80 paragraphs)

[1]

CITATION: REGINA v XX [2009] NSWCCA 115 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

JUDGMENT OF: Tobias JA at 1; Kirby J at 2; Hall J at 3

[3]

That the appeal be upheld. The sentences imposed by the District Court in respect of Counts 1, 2, 3 and 4 be set aside. That the respondent be re-sentenced in respect of Counts 1, 2, 3 and 4 as follows:- (1) Count 4: A non-parole period of 1 year and 8 months to commence on 14 February 2007 and to expire on 13 October 2008 with a balance of term of 9 months to expire on 13 July 2009. (2) Count 1: A non-parole period of 5 years to commence on 14 May 2007 and to expire on 13 May 2012 with a balance of term of 2 years to expire on 13 May 2014. DECISION: (3) Count 2: Taking account of the Form 1, a non-parole period of 6 years and 7 months to commence on 14 November 2007 and to expire on 13 June 2014 with a balance of term of 2 years and 2 months to expire on 13 August 2016. (4) Count 3: A non-parole period of 1 year and 6 months to commence on 14 February 2007 and to expire on 13 August 2008 with a balance of term of 6 months to expire on 13 February 2009. Accordingly the total effective sentence under the orders proposed will be a non-parole period of 7 years and 4 months commencing on 14 February 2007 and expiring on 13 June 2014 with a balance of term of 2 years and 2 months to expire on 13 August 2016. The earliest date upon which the respondent will be eligible for release on parole, accordingly, will be 13 June 2014.

[27]

14 The relevant factual background and subjective features were set out in the Crown's written submissions:- " Factual background 11. Exhibit A in the Crown sentencing brief contained the facts, analyst's certificates and photographs. On 17 February 2007, the police followed the respondent in his motor vehicle to Brown Street, Chatswood, where he opened a locked and secured garage and entered via the rear of the garage. He was seen to crouch down and rummage through boxes. Police approached and the respondent was placed under arrest. He attempted to break free of the officers and made his way to his car, but was restrained by the police. He was searched and police found in [sic] him $1923.60 in cash and a mobile telephone marked 'Clean'. Three further mobile telephones were found in the console of his vehicle. A search warrant was obtained for the garage and a search later that night found the drugs which were the subject of the charges. The drugs were packaged in a variety of weights, clearly for supply, being in kilograms, half-kilograms, ounces, quarters and eight-balls (Facts, page 4). The value of the drugs was estimated to be $600,000. The weapons which were the subject of the charges and on the Form 1 were found in an unlocked filing cabinet in the garage with two boxes of ammunition. The taser was disguised as a torch. The (unloaded) firearms were in working order. The Russian revolver had a silencer attached. A total of $159,600 was found in $100, $50 and $20 notes. Police also found what they believed to be parts of a pill press machine, including rods with logos on them, and approximately 20 kilograms of an unknown cutting agent. Subjective features 12. A Pre-sentence Report was tendered which indicated that the respondent was the eldest of three children in a stable and supportive upbringing. The respondent believed that his parents had pushed him too hard to succeed. He had been engaged for about four years, but had separated prior to the commission of this offence. After leaving school part way through Year 11, the respondent had completed a six-month information technology course and worked in the banking and fast food industries. He established a mobile telephone shop with his fiancé. He commenced using 'Ecstasy' in Year 11 and this escalated following the end of the relationship with his fiancé. When his business folded, he was still in debt for drug purchases and claimed that he agreed to store drugs in exchange for reducing his drug debt. 13. He was talented in martial arts and represented Australia at the Commonwealth Games, winning a medal.

[43]

Error 1: The erroneous calculation point 24 The sentencing judge identified the prescribed standard non-parole periods in respect of each offence and appropriately noted that, by reason of the respondent's pleas of guilty, they need not be imposed but that they nonetheless remained relevant as a reference point and relevant in determining where the offence fell within the range in accordance with the principles enunciated in Regina v Way (2004) 60 NSWLR 168. 25 The sentencing judge assessed the offence in Count 1 as in the mid-range for such offences and the offence in the Count 2 as just above the mid-range of seriousness of offences of its kind. 26 The remarks on sentence then proceed to record evidence bearing upon subjective matters and the matter of assistance before specifying that it was proposed to apply a 60% discount made up of 25% for the respondent's pleas of guilty and 15% for his past assistance and 20% for future assistance. 27 The detailed written submissions for the Crown and those of Mr Game, on behalf of the respondent, analysed the likely approach taken by the sentencing judge in arriving at the ultimate non-parole and parole periods in respect of each offence. The Crown submitted that the sentencing judge had committed errors of calculation in deriving each the sentences in respect of Counts 1 and 2, whilst Mr Game contended that there had been no miscalculation. He, in essence in his submissions, sought to make good his contention by deriving the starting points for each of Counts 1 and 2, with a view to supporting the calculations which he argued must have been made by the sentencing judge in deriving the ultimate sentences imposed in respect of those offences. 28 The detailed matters relied upon in support of the opposing contentions in this regard have been scrutinised. However, having done so, it is sufficient to say that the approach adopted by the sentencing judge in calculating the sentences is susceptible to varying interpretations as to which minds may legitimately differ. 29 It is unproductive to set out the detail underpinning the competing submissions as to the claimed error said to have been involved in the calculation of the sentences in circumstances in which the determinative issues in this case may be identified. Rather, the question must be asked whether the sentences imposed were manifestly inadequate, especially in respect of Count 2 (the most serious of the offences). Alternatively, was it open to her Honour to reach the view she did? The second issue is whether the failure to partially accumulate the sentence in respect of Count 2 and the failure to partially accumulate Count 4 was erroneous. Each of these matters is discussed below under the descriptions "Error 2" and "Error 3". 30 Before considering these issues, it is necessary to have regard to what might be the range of possible sentences, both non-parole and total term, in particular, in relation to Counts 1 and 2 before applying the discount for the plea and assistance. Whilst I consider the sentence on Count 1 low, nevertheless being a Crown appeal, I would exercise the discretion of this Court not to intervene. Accordingly, I do not consider the sentence for Count 1 should be disturbed. 31 In relation to Count 2, taking into account the matters on the Form 1, and adopting a similar conservative approach on the basis of the sentencing judge's assessment that the offence was "just above mid-range", the sentence, before the 60% discount, in my opinion, should not have been less than a head sentence of 22 years with a non-parole period of 16 years and 6 months, for the reasons which are set out at greater length below (paragraphs [37] to [47]). 32 The sentencing judge's assessment of Count 2 as "just above mid-range" was, in my opinion, a very generous one from the respondent's perspective. However, for the purposes of this appeal, I consider this Court should accept that assessment. 33 Applying the 60% discount would produce a non-parole period of 6 years and 7 months with a balance of term of 2 years and 2 months being an overall sentence of 8 years and 9 months (rounding the figures). Error 2: The effective sentence imposed was manifestly inadequate because no effective punishment for Counts 2, 3 or 4 or the matters on the Form 1

[57]

• The 60% discount for the plea and assistance (discussed in paragraph [46]. 42 I have considered whether the supply having occurred in the course of the respondent's activities as a relatively large scale supplier may be evaluated as an aggravating factor by reason of the provisions of s.21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, namely:- "(n) The offence was part of a planned or organised criminal activity, …" 43 In Regina v Yildiz [2006] NSWCCA 97, Simpson J at [37] to [39] considered the circumstances in which the degree of planning may be taken into account as an aggravating feature. Her Honour observed that by s.21A(2) the fact that an offence is part of a planned or organised criminal activity is a matter a sentencing judge is obliged to take into account as an aggravating feature but the Court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction, as her Honour observed, had been extended to circumstances that are "an inherent characteristic" of the offence charged: Elyard v Regina [2006] NSWCCA 43 per Howie J. Her Honour, however, further observed at [37]:- "… But this principle does not mean that the degree to which the 'inherent characteristic' exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor." 44 I do not, in the present case, consider that the fact that the supply occurred in the course of the respondent's activities as a supplier at a mid-level in the hierarchy may be evaluated as an aggravating factor for the same reason as that expressed by Simpson J in Yildiz (supra), namely:- "39. As in Elyard , there was no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind - that is, the degree of planning that would be inherent in the possession of a large quantity of drugs for the purpose of supply. I therefore conclude that what was said was an error …" 45 In relation to the relevant subjective matters, the "background" matters to the offence as referred to in the written submissions for the respondent are, in particular, to be brought into account. 46 In this Court re-sentencing the respondent in respect of Count 2 (and in relation to Count 4, as to which see discussion below) and in considering the question of partial accumulation, it is of central importance on the facts of the present case to bring into account the effect of the respondent's entitlement to the overall discount of 60% for his plea and assistance. Accordingly, in increasing the sentences and allowing for accumulation, it is important to note in respect of the sentences which I propose that any increase represents the net result, allowance having been made for that 60% discount. 47 The respondent should be re-sentenced in respect of Count 2 (taking into account the matters on the Form 1), to a sentence which includes a non-parole period of 6 years and 7 months with a balance of term of 2 years and 2 months. The sentence for Count 2 should be partially accumulated on the preceding sentence by a period of six months (the preceding sentence, as set out in paragraph [64], is to be the sentence to be imposed with respect to the second sentence in the sequence of sentences).

[58]

(2) The remarks on sentence: the issue of accumulation and the question of one criminal enterprise 48 The principles relevant to accumulation are discussed below. In the remarks on sentence, the sentencing judge stated:- "Mr Byrne SC submitted that all of the offences could be considered part of the one criminal enterprise, being linked in time and place, and that the sentence for each should be concurrent, or at worst, of limited accumulation. The Crown submitted that the sentences must be at least partially accumulated. The drugs and firearms were all in the one place at the one time, albeit there were substantial quantities of drugs. I accept an argument can be made that offences related to different drugs and the firearms can be viewed as separate criminal acts and sentences for each could be accumulated. However, I have decided that in this case, on the basis of the evidence the Crown presented, the offences should be treated as part of one criminal episode occurring on one day and the sentences made concurrent. That is not to suggest I treat this offending as isolated or aberrant behaviour." 49 In some cases in determining whether multiple offences are, for the purposes of sentencing, to be considered as one criminal episode, matters of "time" and "place", specifically referred to by the sentencing judge, may be significant. However, in the circumstances of this case, they are not, in my opinion, determinative. For reasons discussed below, the extract from the remarks on sentence set out in paragraph [48], in my opinion, discloses error in the failure to accumulate, in particular, in relation to Counts 2 and 4. 50 Her Honour made reference in the course of her remarks to various matters including the quantities and varieties or forms of drug involved noting that such matters indicated "a substantial supply business" (Remarks on sentence, p.4) and that the respondent in that "business" operated "at a mid-level". The aspects of "time" and "place" could not in themselves in the circumstances of this case operate so as to provide a basis for determining whether the sentence for Count 1 could properly comprehend and reflect the criminality for Count 2 let alone in respect of both the offence constituting Count 2 and the eight Form 1 matters attached to that offence. The criminality of the offence constituting Count 2 was clearly of a different order to that concerning Count 1. 51 The prohibited drugs in Count 2, involving the supply 15 times the large commercial quantity prescribed for MDMA ("ecstasy"), plainly formed a significant part of the estimated $600,000 worth of all drugs seized by police. 52 There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:-

[66]

(8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004] NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act , Simpson J observed at [38] that "… to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims …" In Dunn (supra), the respondent to the Crown appeal had entered a guilty plea to an offence under s.51A of the Crimes Act 1900 of breaking and entering the dwelling house of a female, being armed with an offensive weapon, namely a knife with which he wounded the victim by inflicting three shallow lacerations to her neck. He also pleaded guilty to the offence of assaulting a male thereby occasioning actual bodily harm, that crime also occurring in the female's home when the male victim attempted to protect her from the respondent. On the appeal, the Crown submitted that the sentences should have been partially accumulated. Adams J (with whom Ipp JA and Sully J agreed) stated at [50] that there should have been some accumulation in the sentences to reflect the fact that the respondent had persisted in his violence when the male victim attempted, justifiably and lawfully, to restrain him:- "… there is a distinct difference between assaulting one victim and assaulting two. Each was intentionally injured with the knife. The learned sentencing judge did not articulate his reasons for making the sentences wholly concurrent. Merely that the offences occurred in the course of a single extended episode does not justify such a conclusion. In my view the two attacks were distinct and separate instances of considerable violence and required distinct punishment, although they were so closely related in time and proximity as to require a significant degree of concurrency. Of course, it is also important to ensure that the effective sentence thus derived does not exceed the respondent's criminality considered as a whole."

[73]

• Count 4: supply of a prohibited drug pursuant to s.25(1) of the Drug Misuse and Trafficking Act , being 7.29 grams of heroin. The offence carried a maximum penalty of 15 years' imprisonment. 54 The sentencing judge made the sentences partially concurrent and partially cumulative, by staggering their starting dates. The period of each sentence overlapped with the period of the preceding sentence, but the staggering was such that the sentence on Count 1 commenced shortly after the expiry of the sentence on Count 4. 55 It was submitted in that case on behalf of the applicant that the aggregate total sentence and aggregate non-parole period were both excessive. The submission was that the four offences were substantially connected, the two drug offences being in relation to the applicant's stock as a drug dealer and brought separately only because there were two different types of drugs, and his possession of the pistols being connected with his activities as a drug dealer. The submission was that it was wrong to stagger the starting dates of the two drug offences and it was wrong to stagger the starting dates of the two firearm offences, because each pair of offences bore substantial connections, and greater concurrency should have been given to the two sets of offences. 56 On appeal, this Court (Giles JA, Latham J and Mathews AJ) rejected the submission that such was the connection between the offences that greater concurrency was called for. After citing dicta of Howie J in Cahyadi (supra) at [27], the Court stated:- "32. Possession of the two different kinds of drugs giving rise to the 'deemed supply' offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchasers in the course of the applicant's drug dealing. Nor is the criminality in the possession of the pistols, and two pistols one of which was a prohibited pistol involves greater criminality than one, to any substantial degree reflected in the sentences for the drug offences. The drug dealing could be carried on without firearms; that the applicant had them in his possession in connection with his drug dealing was significant additional criminality, and there was no double counting. The Firearms Act gives effect to the significant legislative policy of strict control upon the possession of firearms, and offences against it inimical to that policy called for substantial recognition in their own right: see R v Cromarty [2004] NSWCCA 54; R v Tolley [2004] NSWCCA 165." (emphasis added) 57 I consider these observations to be relevant to the issues arising in this Crown appeal. They support the proposition that the actual supplies of the prohibited drugs constituting Counts 1 and 2 required a degree of accumulation and also indicate the need for a partial accumulation of Count 4 on the sentence in respect of Count 3.

[74]

(3) Counts 3 and 4 58 The prescription of a standard non-parole period in respect of each of the offences in Counts 3 and 4 means that it was incorrect for the sentencing judge to have imposed fixed terms in respect of each of those sentences as occurred in the present case (SGJ v Regina; K v Regina [2008] NSWCCA 258). Accordingly, the fixed terms should be set aside and this Court should determine, having regard to the principle of totality, the appropriate non-parole periods and total sentences to be imposed, and in that context, the issue of partial accumulation. 59 In respect of Counts 3 and 4, the sentencing judge found, in effect, that the presence of the guns suggested possession in relation to the drug supply business and that the silencer "adds a more serious connotation" and ultimately she assessed Count 4 as "in the mid-range of seriousness". That was a generous finding given that it was in the possession of a person involved in drug dealing. Nonetheless, there was no specific challenge to the finding and, on a Crown appeal, it should be accepted for the purposes of re-sentencing. 60 Whilst, the firearm offences were both discrete and grave offences, there were two firearm offences on the Form 1 and there is need to ensure that there is no inappropriate escalation of sentences in respect of Counts 3 and 4. 61 On the issue of concurrency and accumulation, Mr Game emphasised the flexibility the law permits to sentencing judges, referring in this respect to the observations of Bell JA (as her Honour then was) in Regina v Cowan [2008] NSWCCA 124 at [34]. 62 As indicated above, the imposition of fixed terms in respect of the firearm offences in Counts 3 and 4 instead of the imposition of sentences based upon a non-parole period and balance of term was erroneous and must be set aside and the respondent re-sentenced in relation to those offences. I consider that for the firearm offences the respondent should be re-sentenced as follows (taking account of the 60% discount):-