Satuala Nanai v Regina

Court of Criminal Appeal (NSW)|2012-07-04|Before: McClellan CJ, McDougall J, Adamson J, Clellan CJ, Dougall J

Judgment 1McCLELLAN CJ at CL: I agree with McDougall J. 2McDOUGALL J: The applicant seeks leave to appeal against an aggregate sentence of 10 years, with a non-parole period of 6 years, imposed by his Honour Judge Finnane QC on 12 September 2010. 3The applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (count 1) and one count of possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (count 2). Section 25(1) carries a maximum penalty of 20 years imprisonment and s 7(1) carries a maximum penalty of 14 years imprisonment. On each count his Honour took into consideration other "Form 1" offences (see s 33 of the Crimes (Sentencing Procedure) Act 1999). In relation to count 1, his Honour took into consideration an offence of goods in custody, contrary to s 527C of the Crimes Act 1900. This offence carries a maximum penalty of 6 months imprisonment. In relation to count 2, his Honour took into account one offence of possess an unauthorised weapon, also contrary to s 7(1) of the Firearms Act, and one offence of possess unauthorised ammunition in contravention of s 65(3) of the Firearms Act. The Form 1 offences on count 2 carry maximum penalties of 14 years imprisonment and 50 penalty units respectively. 4A sentence of 6 years with a non-parole period of 4 years, to date from 6 December 2008, was imposed for count 1. A sentence of 7 years with a non-parole period of 3 years, to date from 6 December 2011, was imposed for count 2. 5The grounds of appeal relied upon (or that would be relied upon if leave were granted) were stated as: (1)Ground 1: the sentencing judge erred in taking into account the Form 1 offences when assessing the objective seriousness of the offences for which the applicant was sentenced; (2)Ground 2: the sentence for count 2 was manifestly excessive; (3)Ground 3: the total sentence was manifestly excessive; and (4)Ground 4: the sentencing judge erred in engaging in a two-stage approach when sentencing the applicant. 6Ground 1 was not pressed on the hearing of the application for leave to appeal.

The background facts 7The Crown and the applicant put before Finnane DCJ an agreed statement of facts. The basic facts to be drawn from that document may be stated as follows: (1)In 2001, the applicant was convicted of the manslaughter of two men. The applicant, together with a number of other men, had participated in an assault on the victims. Each victim was shot a number of times. The applicant was sentenced in aggregate to 9 years imprisonment, with an aggregate non-parole period of 5 years. He was released on parole on 12 December 2005. He was on parole when he committed the offences that are now in question. He served the balance of his sentence, from 6 August 2008 to 12 March 2009, whilst he was remanded in custody for the present offences. (2)In May 2008, the applicant was stopped whilst driving a motor vehicle in Edgecliff. He was searched. Police found $6,475.00. That is the subject of the charge of goods in custody on the Form 1 associated with count 1. (3)Between 15 and 17 July 2008, police lawfully intercepted telephone conversations in which the applicant arranged to supply some 3,000 pills containing an unspecified prohibited drug. That is the conduct that gave rise to count 1. (4)On 17 July 2008, the applicant was lawfully recorded discussing the use of a firearm. Later conversations, concerning ammunition and a test firing session, were also recorded. The applicant was arrested on 6 August 2008. His home was searched. A .22 calibre Bersa pistol was located. That is the subject of count 2. There were also found a silencer fitting the pistol and some 44 rounds of ammunition. Those are the Form 1 offences attaching to count 2. (5)The applicant pleaded guilty at Central Local Court, and asked for the Form 1 offences to be taken into account. He was remanded in custody for sentence.

The remarks on sentence 8The sentencing Judge set out the matters to which I have referred. He noted that the applicant was entitled to the maximum discount on sentence, 25%, because of his plea of guilty at the earliest opportunity. He then turned, in a way that is not the subject of criticism, to the facts underlying the two charges. His Honour then turned to subjective factors, including the applicant's previous criminal record (which, his Honour said, "apart from the manslaughter charges, is insignificant") and other matters. Again, that aspect of his Honour's remarks is not the subject of criticism. 9His Honour then turned to the sentencing process. He said (remarks on sentence, page 8): Because both these offences carry a standard non-parole period, I am required to engage in a two-part process in evaluating each offence. I have to determine whether the offence in each case is a mid-range offence, is less than mid range or is greater than mid range. Because he has pleaded guilty I do not have to impose the standard non-parole period for the first count of ten years and the second of three, but I must continually keep both those standard non-parole periods in mind as a guidepost just as I must take into account the maximum penalty in each case as a guidepost. In relation to each matter I also have to take into account in determining the seriousness of the offence and whether it is mid range or not, the fact that he has asked me to take into account other matters on the Form 1. 10It is what his Honour said in the first of those paragraphs that gives rise to ground 4. It is what his Honour said in the second of those paragraphs that had given rise to the (now abandoned) ground 1. All that need be said is that his Honour concluded (in my opinion, correctly) that in relation to count 2: ... the two Form 1 matters do add to the seriousness of the matter because they show that he had not only a pistol in his possession but he had a silencer, and he had ammunition. 11As to count 1, the sentencing Judge concluded that it was a serious offence but not a midrange offence. As to count 2, his Honour concluded that it was a midrange offence. He said (remarks on sentence, page 10): ... I think it is a very serious matter for someone to have a working pistol with ammunition and a silencer. The only reason anyone would have such weapons in his possession is to use them for some criminal activity. 12His Honour then referred to a submission that the applicant had the pistol, ammunition and silencer because he was paranoid, and because he wished to protect himself. His Honour said, again in my view correctly, that that was "not to the point". He continued (remarks on sentence, page 10): Our courts have to take action to demonstrate to the public at large that we do not accept the entitlement of people to have unauthorised weapons in their possession, particularly weapons like this that can be held only for one purpose, and that is for serious criminal activity. 13In respect of count 1, his Honour, having referred to the Form 1 matter, said (remarks on sentence, pages 9-10): I intend to impose a four year non-parole period with a total sentence of 6 years. That may appear to be very harsh, particularly on someone who seems to be making serious endeavours to do something for the future, but in determining that four years I have reduced the sentence that I might well have imposed by taking into account the fact that he is a drug addict and that he is making serious endeavours to rid himself of his addiction, and that he has been a person of good behaviour. 14In respect of count 2, his Honour said (remarks on sentence, pages 10-11): Taking into account all the matters of a subjective nature in his favour - and I have referred to them already - taking into account the plea of guilty, and the maximum discount, I have decided nonetheless to impose on him the standard non-parole period of three years with a head sentence of seven years. 15His Honour then considered the questions of from when the sentences should date, and of concurrency (or accumulation). He decided that it would be too harsh on the applicant to date the sentences from 12 March 2009 (when the previous parole period expired), and instead backdated the sentence on count 1 to commence on 6 December 2008. It followed that the non-parole period, of four years, would continue through to 5 December 2012. In relation to term 2, his Honour determined that the sentence should commence from 6 December 2011. The effect is that there was one year of concurrency and (as to the non-parole periods) two years of accumulation.

Ground 2: the sentence for count 2 is manifestly excessive 16Counsel for the applicant accepted that the non-parole period of 3 years "was open". (That was a wise position to adopt; in my view, it could be said that the non-parole period imposed was lenient in all the circumstances.) However, counsel submitted, the overall term of 7 years was manifestly excessively. 17Counsel submitted that the head sentence of 7 years, after a discount of 25% for the early plea of guilty, reflected a "starting point" of 9 years and 3 months. That, he submitted, was too high. He referred to: (1)decisions of this court, including Do v R [2010] NSWCCA 182; and (2)sentencing statistics produced by the Judicial Commission of New South Wales. 18I start with the decision in Do. The applicant Do was charged with possessing a prohibited pistol, and possessing an unregistered firearm. The facts of that case were serious, and the subjective factors related to the applicant were not impressive. I set out paras [7], [16] and [17] of the reasons of Hislop J (with whom McClellan CJ at CL and Barr AJ agreed) to make good that point: [7]A search of the vehicle and its occupants revealed the presence of a balaclava and three white gloves. One occupant (Nguyen) had a machete with a 50 cm blade secreted in his pants. A black Parabellum pistol containing a magazine with 10 live rounds of ammunition was located in the foot well where one occupant (Chompeay) had been sitting. A 32 calibre Beretta pistol was located in the foot well area on the driver's side where the applicant had been sitting. It contained a magazine with two live rounds of ammunition. A plastic bag containing 0.27 grams of methylamphetamine was located in his pocket. The occupant Tran had a Taser-type device, in working order, on his person and a copper coloured bullet in his pocket. A .25 calibre pistol with a magazine with six live rounds was found in the foot well area where Tran had been sitting. The pistols were prohibited and unregistered. The occupants had no licences or permits in respect of them. Numerous items of correspondence in the name of the applicant were located in the glovebox of the vehicle. ... [16]The applicant's record showed that he had been convicted of a number of types of different offences including illegal use of a motor vehicle, self administer prohibited drug, break enter and steal, armed robbery, steal motor vehicle, possess firearm without licence, resist officer, enter inclosed lands, behave in an offensive manner, supply prohibited drug, possess unauthorised firearm, possess prohibited drug and goods in custody. He has served previous terms of imprisonment. [17]At the time of the offence the applicant was on conditional liberty, being on parole, having been sentenced to four years imprisonment with a 15 month non parole period for drug supply, and a concurrent ten month fixed term for possession of an unauthorised firearm, with the sentences commencing on 25 June 2005. He was released to parole on 24 September 2006. As a result of the subject offences, the parole was revoked effective as of the date of his arrest, 10 June 2008, and he was ordered to serve the balance of parole of one year 15 days, which expired on 24 June 2009. 19Hislop J said at [23] that the objective circumstances of the offence was such as to place it significantly above the middle range of objective seriousness. Thus, his Honour said, the standard non-parole period was of limited relevance, and the principal relevant factor in determining the sentence was the maximum penalty, 14 years imprisonment. 20Counsel for the applicant submitted, correctly, that in this case, the sentencing Judge had concluded that count 2, viewed objectively, was "a midrange offence". 21In my view, the sentencing Judge was correct when he described count 2 as objectively, "a midrange offence". The applicant had possession of a pistol, a silencer adapted for it, and live ammunition. He had been overheard arranging to buy more powerful ammunition, and to conduct a test firing. It was open to the sentencing Judge to infer that these preparations were not being undertaken simply to while away the time between drug deals. 22In my view, the circumstance of the present matter are distinguishable, in a very significant respect, from the circumstances in Do. The applicant Do undoubtedly had a serious criminal history. It involved, among many other things, the illegal possession of a firearm and armed robbery (whether or not that armed robbery was conducted using firearms is not disclosed). Both the range and the quantity of weapons found, and the circumstances in which they were found, supported the inference that Do and his companions intended to use the weapons for criminal purposes. But, so far as the facts show, Do had not been convicted of any offence of wounding or killing, whether involving the use of firearms or otherwise. 23By contrast, in this case, that was the position of the applicant; and as I have now said several times, he was on parole, for those very offences, when he committed the present offences. 24In my view, that distinction is fundamental. It leads necessarily to the conclusion that the outcome in Do cannot be regarded as providing any useful guide to an appropriate outcome in the present case. 25It is not necessary to go to the other decisions on which counsel for the applicant relied, since they were further remote from the facts in this case, and in my view offer nothing by way of relevant guidance. 26I turn to the statistics. They dealt with sentences from July 2004 to June 2011 in "higher courts". The median term of imprisonment (including consecutive and non-consecutive terms) was 36 months, representing 37% of all the sentences collated in the statistics. The figures showed what appears to be only one head sentence of 7 years, presumably that imposed on the applicant, and no head sentences of a longer duration. 27As to non-parole periods (for non-consecutive terms only), the statistics showed a median term of 18 months, representing 40% of the sentences collated. There appear to have been four cases in which a non-parole period of 3 years was specified, and 2 in which a higher non-parole period was specified. 28It may be accepted that the statistics could be interpreted to show that the head sentence imposed by the sentencing Judge falls at the extreme range of severity for all the recorded sentences comprised in the statistics. However, the statistics do not show, and this court has no way of knowing otherwise, the underlying facts of any of the other offences. For example, there is no indication as to what (if any) other criminal activity the various offenders were engaged in at the time of their convictions on firearms offences. Their previous criminal histories are not known. In particular, and in my view of crucial significance, it is not known whether or not they had been involved in unlawful killings using firearms at some earlier time, nor whether they were, at the time of commission of the offence for which the sentence is recorded in the statistics, on parole for such a crime. 29Thus, in my view, the statistics are of no utility in demonstrating that, in the present case and having regard to the facts of the present case, the sentence imposed was excessive, let alone manifestly so. 30It is necessary to look at the sentences overall. That overall view requires a recognition that, for the two offences and taking into account the form 1 offences, there was an aggregate head sentence of 10 years with an aggregate non-parole period of 6 years, and that the applicant received some leniency by the backdating of the commencement of the sentences to a time when the applicant was serving out the balance of his previous sentences. 31The sentencing Judge was required to take into account the need to mark the community's disapprobation of the serious crimes to which the applicant had pleaded guilty. His Honour was required to have regard to the need (which his Honour stressed) to denounce firearms offences, and (another matter stressed by his Honour) to the importance of personal deterrence. Both those factors have particular resonance in this case because of the offences for which the applicant was on parole at the time of commission of the subject offences. 32The sentencing Judge was entitled to infer that the previous sentence imposed on and served by the applicant had not served any real rehabilitative function. Nor had it appeared to deter him from engaging in further criminal behaviour, of a most serious kind. 33The question is whether, in all the circumstances, the sentences are unreasonable or plainly unjust. In my view, when all the circumstances are taken into account, they are not. In addition to the factors to which I have referred, it is necessary to bear in mind (in particular) the two Form 1 offences associated with count 2. The facts underlying count 2 show that the applicant possessed a pistol. The facts underlying the offences give rise to the inference that he intended to use it, if necessary, in connection with the criminal enterprise disclosed by the facts underlying count 1. 34Accepting, as the sentencing Judge did, the subjective circumstances disclosed (and as I have said, his Honour referred to them in detail), nonetheless, in my view, it cannot be said that the sentences, in aggregate, were unreasonable, or plainly unjust.

Ground 3: accumulation 35Effectively, the sentencing Judge accumulated the sentences by 3 years. Counsel for the applicant accepted that some accumulation was necessary. He postulated a range of 1 ½ to 2 years. 36Counsel for the applicant submitted that the sentencing Judge had not referred to the principle of totality, and, accordingly, that this court should conclude that his Honour had overlooked, or misapplied, that principle. Thus, even accepting (as counsel did accept) that the decision to accumulate is discretionary, it was submitted that the discretion miscarried to a point where this court should intervene. 37The sentencing Judge did not in terms refer to the principle of totality. However, it is clear, from the way in which he considered the question of concurrency / accumulation, that his Honour had that principle in mind. His Honour was very much aware, and indeed stated, the overall effect of the sentences that he proposed to impose and the extent to which he proposed to make them cumulative. There was no other reason for his Honour to backdate the sentence on count 1 to the extent that he did, except to accommodate the concept of totality. 38Each of the offences was serious. Further, although there was an underlying factual relationship between them, they were discrete offences. This was not a case where (for example) a sentence on count 1 would reflect the criminality both of that offence and of the conduct involved in count 2. On the contrary, it was necessary, to reflect the discrete and differing criminality shown by the underlying facts, to impose a substantial cumulative period. 39As Howie J said in Cahyadi v R (2006) 168 A Crim R 41 at [27], the issue is whether the sentence for one offence can comprehend and reflect the criminality for the other offence. The extent of concurrency reflects the extend to which this question can be answered "yes". 40The sentencing Judge did not in terms explain why it was that the sentence on count 1 could not properly comprehend and reflect the criminality for the offence in count 2. Nonetheless, it is apparent from his Honour's careful recitation of the facts that he was well aware of this point. Further, that recitation of the facts makes it plain why, as I have said, there was a need for accumulation. 41The only relevant relationship between the underlying facts of the two offences was that, as I have said, it was clearly open to infer that the applicant had procured the pistol for use, should it prove necessary, in his business of supplying prohibited drugs. But it is possible to supply prohibited drugs without arms; and a pistol may be used for many purposes other than that of illegitimate enforcement of an unlawful business activity. In my view, the degree of relationship between the two offences is properly reflected in the extent to which the sentencing Judge made the sentences concurrent. 42It follows, in my view, that the degree of accumulation imposed by the sentencing Judge was not excessive. On the contrary, I think, the fact that his Honour was prepared to allow a year of concurrency was another instance of leniency towards the applicant: influenced, no doubt, by the subjective factors to which, clearly, his Honour paid careful regard.

Ground 4: the two-stage approach 43It is plain that the approach the sentencing Judge said he would take is inconsistent with the principles explained in Muldrock v The Queen (2011) 244 CLR 120 at [26] and following. 44However, counsel for the applicant did not submit that this error of (stated) approach was of itself productive of error in the outcome. Rather, his submission was that error in the outcome was demonstrated by reason of the matters addressed under grounds 2 and 3. 45In my view, it is clear that, although the sentencing Judge stated that he proposed to engage in a two-stage process of assessment, what he did in fact was something else. As was emphasised in R v Zreika [2012] NSWCCA 44, it is necessary to read as a whole all the relevant comments of the sentencing Judge. In this case, the remarks on sentence make it plain that on each count, the sentencing Judge had regard to the maximum sentence provided and to the standard non-parole period as guides available for the exercise of the sentencing discretion. That is apparent from the first of the paragraphs quoted at [9] above. That approach does not betray error. On the contrary, in my view, it demonstrates that the sentencing Judge did engage in the process of instinctive synthesis for which the sentencing exercise called, guided (as properly he might be) by both the maximum available penalty and the standard non-parole period for each offence. 46In undertaking that process, the sentencing Judge had regard to relevant matters including the objective seriousness of the offences charged, the objective circumstances, the subjective circumstances and the significant (in the case of count 2) Form 2 offences that were taken into account. 47Counsel for the applicant submitted that it appears, from the paragraphs that I have quoted at [9] above, that, on each count, it was the standard non-parole period that was the "driver" of the sentencing decision. I do not agree. In my view, the summary given by the sentencing Judge, in relation to count 2, set out at [14] above, makes it clear that this was not the case. 48In short, reading the remarks on sentence in their entirety, I do not accept that the apparent error of approach (as it has since been shown to be) was productive of any error in outcome. On the contrary, in my view, the outcome was if anything favourable to the applicant, in the sense that it exhibited a degree of leniency over and above that which, having regard to all the circumstances of the case, he was entitled to expect. 49To put it another way: if the sentencing Judge did allow himself to be misled by undue focus on the standard non-parole period for count 2, the consequence was that he imposed a non-parole period which could not be regarded as reaching the outer limit of severity appropriate in a case such as this.

Conclusion 50In my view, each of the grounds of challenge to the sentences imposed by the sentencing Judge fails. However, in my view, the question raised by ground 4 does raise a point of some significance. Since my decision on ground 4 takes into account my conclusion on grounds 2 and 3, I think it appropriate to grant leave to appeal against sentence, but to dismiss the appeal. 51Accordingly, I propose the following orders: (1)grant leave to appeal. (2)Order that the appeal be dismissed. 52ADAMSON J: I agree with McDougall J.

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