Saracevic v The Queen [2017] VSCA 212

2 On 18 January 2016, the appellant pleaded guilty to one charge of blackmail of Keith Tribe and two unrelated charges of recklessly causing injury on Indictment C1309287F.

3 On 18 February 2016, following a four-day trial, the appellant was found guilty of one charge of blackmail of Lance Pinder on Indictment C1309287C.1.

4 On 22 February 2016, the appellant pleaded guilty to one charge of possession of an unregistered general category handgun on Indictment C1309287D.1 ('the handgun possession charge'). The maximum penalty for a first offence is 7 years' imprisonment or 600 penalty units.[1]

5 Prior to the commencement of the plea hearing on 3 March 2016, the appellant pleaded guilty to a summary charge of possessing ammunition without licence.

6 On 22 April 2016, the appellant was sentenced to a total effective sentence of four years and four months' imprisonment with a minimum non-parole period of three years, as follows:

[Crimes Act 1958 s 87]

[Crimes Act 1958 s 18]

Possess an unregistered general category handgun [Firearms Act 1996 s 7B(1)]

[ Firearms Act 1996 s 24]

7 The appellant, having been granted leave to appeal by Priest JA in March 2017, now appeals against sentence on the following grounds:

Ground 1: The individual sentence of 18 months' imprisonment imposed by the learned sentencing judge on the one charge which specified the offence of possession of an unregistered general category handgun contrary to s 7B(1) of the Firearms Act, 1996 (Vic) on Indictment No. C1309287D.1 is, in all the circumstances of the case, manifestly excessive.

Ground 2: The Total Effective Sentence imposed by the learned sentencing judge namely, 4 years and 4 months' imprisonment is, in all the circumstances of the case, manifestly excessive.

Ground 3: The non-parole period fixed by the learned sentencing judge, namely 3 years, is, in all the circumstances of the case, manifestly excessive.

8 The appellant's challenge rests upon the individual sentence and order for cumulation imposed upon the handgun possession charge. No issue is taken with the other individual sentences. Thus, ground 1 contends that the sentence of 18 months' imprisonment imposed on that charge was manifestly excessive. Ground 2, alleging manifest excess in relation to the total effective sentence, in effect, flows from ground 1, with an additional complaint against the sentencing judge's order to cumulate nine months of the sentence on that charge. Likewise with ground 3 in relation to the non-parole period.

9 It is only necessary to set out briefly the circumstances of the offending in relation to the charges of blackmail and recklessly causing injury on Indictments C1309287F and C1309287C.1, as they form the background to the appellant's arrest and subsequent handgun possession charge. Priest JA in his reasons for granting leave described them as follows:

The blackmail on Indictment C1309287F, to which the [appellant] pleaded guilty, related to conduct over the course of about a month, from August to September 2013. On 27 August 2013, the [appellant] - at the time a member of the Comancheros Motorcycle Club - and three others,[2] entered the home of Keith Tribe uninvited. He demanded a sum in excess of $850,000 from Tribe, intending to instil fear in him. The next month, the [appellant] met with Tribe at a shopping centre, where police recorded him making demands for money. As Tribe refused to pay, the [appellant] organised others to attend Tribe's home, at one time instructing them to leave a bullet at his door. He also made threatening calls to Tribe. The [appellant] was the ringleader in the offending.

So far as the two charges of recklessly causing injury on Indictment C1309287F are concerned, it seems that two individuals wanted to recover property from David Fehily and his son Shaun, which was being held as security for unpaid rent. On 20 July 2013, the [appellant] and Jaha[3] went to the Fehily's property to intimidate them. When the Fehilys refused to surrender the property, the [appellant] and Jaha assaulted both men, causing cuts and tenderness. David Fehily also suffered a concussion.

With respect to Indictment C1309287C.1 - upon which the [appellant] went to trial - it seems that an individual, Guy Agresta, wished to collect a debt of $260,000 owed to his construction company by one Lance Pinder. 'Ali' recommended the [appellant] to Agresta as a debt collector, but said that the applicant would require a $5,000 down-payment to collect the debt. Agresta did not instruct the applicant to collect the debt. Despite not having been instructed to collect the debt, however, on 13 July 2013, the [appellant], having received information about the debt, went to the home of Lance Pinder's brother, Ryan Pinder. Ryan Pinder said that he had nothing to do with the debt, but passed on Lance Pinder's telephone number. The applicant then telephoned Lance on multiple occasions in relation to the debt, identifying himself as 'Benji' from 'Condor Mediation'. On 25 July 2013, an unknown person entered Ryan Pinder's home, assaulted him and caused damage to the house, demanding that Agresta be paid. Evidence suggested that this intruder was the [appellant]. Following the intrusion, Lance received further threatening phone calls from the [appellant] demanding money.

10 The handgun possession charge on Indictment C1309287D.1, the focus of this appeal, arose from the appellant's arrest on 1 October 2013 whilst he was getting into a vehicle about to be driven by Jaha. A search of the vehicle revealed a bum bag in the footwell of the front passenger seat. It contained a semi-automatic pistol with a fully loaded magazine and 10 additional rounds of loose ammunition, along with a pair of latex gloves.

11 Investigators found more ammunition during a search of the appellant's residence later that day. That ammunition together with the 10 rounds found in the vehicle formed the basis of the summary charge of possessing ammunition without licence.

12 In his sentencing remarks, the judge noted that police telephone intercepts within days before the appellant's arrest had captured the appellant talking about the handgun being located in the boot of his vehicle and discussing with Jaha if he (the appellant) should bring a firearm to a meeting. The appellant did not hold a licence to possess a firearm and offered no evidence as to the need for him to possess one. His Honour said that it may be assumed that the appellant 'possessed the firearm for entirely criminal purposes'.

13 The sentencing judge characterised the handgun possession charge as 'clearly a very serious example of what is also a very serious offence.' His Honour added:

It is notorious that firearms offences are becoming more prevalent in the community. One only has to read the newspapers to gain the impression that guns are possessed by many in the community. The sentence imposed on this charge must be influenced by the need to appropriately reflect general deterrence.

14 His Honour noted that while the appellant's guilty pleas - which included the handgun possession charge - had not been entered at the earliest opportunity, they nonetheless had utilitarian value, and accepted that by pleading guilty the appellant had shown 'a measure of remorse'.

15 When dealing with matters personal to the appellant, the judge noted that the appellant had no prior convictions. His Honour accepted that the appellant had been exposed to war in Bosnia before migrating to Australia in 1990 with his family when he was seven years of age. He was now 29 years of age.

16 As to schooling and employment, the judge accepted that the appellant commenced primary school not being able to speak English and attended three different primary schools. After leaving school at Year 12, in 2006 he gained a diploma in electronic engineering. He started a successful painting business with his father in 2009 and ran a car wash business in partnership with Jaha.

17 The judge recorded that the appellant married his wife in 2011 and has a young son from that relationship. His Honour found that the appellant willingly became involved with the Comancheros in 2013, over his wife's disapproval, having been introduced to the club by Jaha.

18 The judge accepted that the appellant had expressed regret for the trouble caused to his family by his conduct, and noted that he had complied with strict conditions whilst on bail after having spent two months in custody on remand following his arrest. The appellant's counsel told the judge that the appellant no longer wished to associate with the Comancheros; as to this, his Honour said that whether that would be the case 'remains to be seen'.

19 Summing up the appellant's prospect of rehabilitation, the judge said this:

From what I have been told you do have a successful business and you do have a history of hard work. There is evidence that you have assisted others with work and in charitable ways. That is to your credit and I have taken it all into account. Provided you cease any association with the Comancheros or any past members of it, I think your chances for rehabilitation are reasonably good. Time will tell. Whether you can fully rehabilitate yourself is entirely up to you. You come from a good family and have a loving and supportive wife. You therefore have the support to achieve a full rehabilitation but you must be the one who aims for this outcome.

20 In the overall sentencing synthesis of the multiple charges, the judge said this:

The number of offences and the seriousness of them in my view means that [a community correction order] is out of the question. The sentence here must appropriately reflect general deterrence, appropriate denunciation, just punishment and to a certain extent protection of the community. ... In my opinion there is no reason here why any parole period should be longer than is normally required.

21 It was submitted on behalf of the appellant that the sentence of 18 months' imprisonment on the handgun possession charge was manifestly excessive in light of current sentencing practice.

22 Counsel relied on several cases in support of that submission. Two cases concern sentences imposed for the subject offence of possessing unregistered general category handgun contrary to s 7B(1) of the Firearms Act - Collins v The Queen[4] and Kieawkaew v The Queen.[5] The other five cases concern sentences imposed for the offence of prohibited person in possession of a firearm contrary to s 5(1) of the Firearms Act 1996, which carries a maximum penalty of 10 years' imprisonment - Powell v The Queen,[6] Barwick v The Queen,[7] Haddara v The Queen,[8] Zogheib v The Queen,[9] and R v Afacan;[10] of those, Haddara[11] also dealt with charges of prohibited person in possession of an unregistered firearm contrary to s 5(1A) of the Firearms Act 1996 (since repealed), which had a maximum penalty of 15 years' imprisonment.[12]

23 Those cases, it was submitted, disclose a sentencing pattern in recent years for firearm possession offences. In each case, a lesser term of imprisonment - ranging from 3 to 15 months - was imposed. That was so even for offences said to be more serious because of higher maximum penalties. On that basis, counsel submitted that the sentence of 18 months' imprisonment imposed in this case fell beyond the range of available sentences. It was not submitted, and the material before this Court does not reveal, that the sentencing judge was taken to those cases during the plea. During oral argument, counsel correctly disclaimed reliance on the cases as binding precedents to be applied or distinguished. Rather, he submitted that the cases demonstrate a general range of available sentences.

24 Senior Counsel for the Crown acknowledged that courts are required to have regard to current sentencing practices pursuant to s 5(2)(b) of the Sentencing Act 1991 when sentencing offenders, including by reference to comparable cases. He submitted that comparable cases may provide a relevant 'yardstick' but do not 'cap and collar' the range of sentences available to a sentencing judge.[13]

25 He submitted that the sentence imposed on the handgun possession charge was, in all the circumstances of the case, within the limits of sentencing discretion. He referred, in particular, to the unchallenged finding of the sentencing judge that the appellant 'possessed the firearm for entirely criminal purposes', which placed the offending in a higher category of seriousness;[14] and the fact that the criminality associated with the handgun possession charge was distinct from those of the other charges of blackmail and recklessly causing injury, such that the principle of avoiding double punishment did not arise in this case.

26 As to the cases cited by the appellant, counsel submitted that none of the cases were relevantly comparable when the two factors of serious criminality and lack of double punishment were taken into account. He cited Lipp v The Queen[15] as an example of a case broadly comparable in facts and applicable principles.

27 The question is whether the sentence imposed on the handgun possession charge was wholly outside the range of sentencing options available to the sentencing judge. The appellant's submission that the sentence was inconsistent with current sentencing practice is one factor in the determination of that question.

28 In Zogheib v The Queen,[16] Maxwell P commented on the appropriate use of comparable cases in ascertaining current sentencing practice:

The experience of this Court - and of other intermediate appellate courts - is that arguments about manifest excess invariably rely on such comparisons. Provided that the cases relied upon are carefully selected, and can be shown to be relevantly comparable or instructively different, such reliance is entirely appropriate.

A submission of manifest excess invokes the principle of consistency, which expresses the requirement of the rule of law that like cases be treated alike. As the High Court has made clear, consistency does not require numerical equivalence. This must be so, given that the very concept of sentencing 'range' acknowledges that reasonable minds may differ as to the appropriate sentence in a particular case.

Comparable cases provide guidance as to the applicable sentencing range. They inform the sentencing court, and the appeal court, of current sentencing practice with respect to cases in the relevant category of seriousness. As decisions of this Court illustrate, comparable cases can be indispensable, whether in demonstrating that a sentence is manifestly excessive or manifestly inadequate, or in showing that the sentence under appeal was within range.[17]

29 As the cases relied on by counsel illustrate, firearm possession offences are frequently charged alongside other serious offences. The circumstances and seriousness of offending vary significantly. It is necessary to keep the relevant category of seriousness in mind when considering the sentencing range for the particular offence. It is also not uncommon to have cases where the issue of double punishment arises because the firearm possession offence overlaps with a more serious offence, for example, if the firearm was used in the commission of an armed robbery. Such cases will result in sentences that are, in principle, different from cases where the firearm possession offence is discrete.

30 It is not sufficient to say that the sentence imposed in this case was impermissibly high simply because it lay outside - by months rather than years, one might add - the range of sentences in the cases cited by the appellant. To treat those cases as revealing a relevantly comparable sentencing pattern, without more, would be to ignore the underlying sentencing principles identified above. Just as examining a single comparable case in 'micro-detail' may be productive of error in sentencing,[18] consistency in sentencing is not achieved by having mere regard to a numerical range of sentences at a level of abstraction such that relevant legal principles are masked.[19] While the appellant's submissions were not at that level of abstraction, it is nevertheless important to regard the submissions in the overall context of the case.

31 In the end, whether the sentence was wholly outside the range of sentencing options available depends on all the circumstances of the case, including the prescribed maximum penalty, and the circumstances of the offending and the offender.

32 The appellant took no issue with the judge's findings in respect of the offending. It was well open to the judge to characterise the offending as a 'very serious example of what is also a very serious offence'. The unchallenged finding that the possession of the handgun was associated with criminal activity elevated the seriousness of the offending into a category warranting a more severe sentence.[20] The gravity of the offence was also increased by the fact that the handgun was not only functional but fully loaded, and therefore had the capacity to inflict lethal violence on members of the public. The sentencing judge was undoubtedly entitled to regard general deterrence as a particularly significant consideration.

33 Further, and as the Crown submitted, the criminal activity associated with the handgun possession charge was unconnected to the other charges for which the appellant fell to be sentenced. The principle of avoiding double punishment did not arise in this case. The judge was required to, and did, impose a penalty reflecting the full extent of the appellant's criminality associated with the possession of the handgun.

34 The judge's findings as to the appellant's prospects of rehabilitation and his weighing of all of the relevant mitigating circumstances - the utilitarian value of the appellant's guilty plea accompanied by a measure of remorse, lack of prior convictions, good work history and family support - were similarly unchallenged.

35 In those circumstances, the judge imposed an individual sentence that was just over a fifth of the prescribed maximum penalty.

36 In all the circumstances, we are not persuaded that the individual sentence imposed on the handgun possession charge was manifestly excessive. Ground 1 therefore fails.

37 The appellant's challenges to the total effective sentence in ground 2 and to the non-parole period in ground 3 being predicated upon a finding of manifest excess in the individual sentence imposed on the handgun possession charge, grounds 2 and 3 likewise fail.

38 The Court will order that the appeal be dismissed.

[1] For a second or subsequent offence, the maximum penalty is 1200 penalty units or 10 years' imprisonment.

[2] These include Emir Jaha, who was sentenced to 18 months' imprisonment for blackmail after a trial. Jaha was also present at meetings with Tribe so as to physically intimidate him. See DPP v Jaha [2016] VCC 483 (citation in original).

[3] Jaha was sentenced to six months' imprisonment on each charge following a guilty plea. His sentence was higher due to prior convictions for violent offending. The [appellant] had no criminal record prior to the offending the subject of this application [now appeal] (citation in original).

[4] [2015] VSCA 106: 6 months' imprisonment wholly concurrent on one charge of possession of unregistered general category handgun (shortened Lithgow Rimfire bolt-action rifle). Other charges of burglary, theft and armed robbery.

[5] [2016] VSCA 269: 3 months' imprisonment with 1 month's cumulation on one charge of possession of unregistered general category handgun (Colt .38 revolver). Other drugs and summary charges.

[6] [2015] VSCA 93 ('Powell'): 15 months' imprisonment as base sentence on one charge of prohibited person in possession of two firearms (.22 calibre handgun and sawn-off 12-gauge shotgun). Other drugs and summary charges.

[7] [2015] VSCA 100: 12 months' imprisonment with 6 months' cumulation on one charge of prohibited person in possession of firearm (automatic pistol). Other drugs and summary charges.

[8] [2015] VSCA 158 ('Haddara'): Three charges of prohibited person in possession of unregistered firearm (.22 calibre pen pistol, SKS-M semi-automatic rifle and M1 Carbine semi-automatic pistol), four charges of prohibited person in possession of firearm (AK-47 assault rifle, Sterling .22 calibre rifle and two .22 calibre pen pistols). Individual sentences between 9 and 18 months' imprisonment with cumulation between 2 to 6 months. Other drugs and summary charges.

[9] [2015] VSCA 334: Two charges of prohibited person in possession of firearm (.32 calibre semi-automatic handgun). 12 months' imprisonment on each charge with 12 months' cumulation on one charge. Other charges of reckless conduct endangering life and possessing counterfeit money.

[10] [2015] VSC 755: 12 months' imprisonment wholly concurrent on one charge of prohibited person in possession of firearm (sawn-off shotgun). Other charge of intentionally causing serious injury).

[11] [2015] VSCA 158, see above n 6.

[12] See also cases referred to in Powell [2015] VSCA 93 n 3.

[13] The Crown in written submissions cited R v Kilic [2016] HCA 48; (2016) 339 ALR 229.

[14] Berichon v The Queen (2013) 40 VR 490, 496 [26] (Redlich JA) ('Berichon').

[15] [2013] VSCA 384: 3 years and 6 months' imprisonment as base sentence on one charge of prohibited person in possession of unregistered firearm (Ruger handgun). Other firearms, explosives and drugs charges. Cited in Powell [2015] VSCA 93 n 3.

[16] [2015] VSCA 334.

[17] Ibid [2]-[5] (citations omitted).

[18] Hudson v The Queen [2010] VSCA 32; (2010) 205 A Crim R 199, 208-9.

[19] R v Pham [2015] HCA 39; (2015) 256 CLR 550; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

[20] Berichon (2013) 40 VR 490, 496 [26] (Redlich JA).