Stoeski v R

Crimes Act 1900 s 188(1)(a) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 44(2) Drug Misuse and Trafficking Act 1985 s 24A

Cicekdag v Regina [2007] NSWCCA 218 Mill v The Queen (1988) 166 CLR 59 R v Close (1993) 31 NSWLR 743 CASES CITED : R v Fidow [2004] NSWCCA 172 R v MMK [2006] NSWCCA 272 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v Simpson (2001) 53 NSWLR 704 Regina v Cramp [2004] NSWCCA 264

COUNSEL: P Hamill SC (applicant) L Wells (respondent)

SOLICITORS: Nyman Gibson Stewart (applicant) S Kavanagh Public Prosecutions (respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/5561

ALLSOP P JOHNSON J PRICE J 14 October 2008 STOESKI v R Judgment 1 ALLSOP P: I agree with Price J. 2 JOHNSON J: I agree with Price J. 3 PRICE J: The applicant seeks leave to appeal against the severity of the sentences imposed upon him in the District Court on 29 November 2007 by Ainslie-Wallace DCJ (the sentencing Judge). He had pleaded guilty to an indictment containing three counts, being one count of possession of a pre-cursor, pseudoephedrine, intended by him for use in the manufacture by another person of a prohibited drug namely methylamphetamine contrary to s 24A of the Drug Misuse and Trafficking Act 1985 and two counts of disposing of a stolen motor vehicle contrary to s 188(1)(a) of the Crimes Act 1900. 4 An offence contrary to s 24A of the Drug Misuse and Trafficking Act is punishable by imprisonment for 10 years. An offence contrary to s 188(1)(a) of the Crimes Act is punishable by imprisonment for 12 years. 5 Two offences on a Form 1, namely an offence of unlawfully obtained goods on premises and an offence of knowingly dealing with proceeds of crime were taken into account by the sentencing Judge on the sentence imposed for count one. 6 The applicant was sentenced on the first count to imprisonment with a non-parole period of 2 years to commence on 17 October 2008 and to conclude on 16 October 2010. A balance of term of 1 year 6 months to conclude on 16 April 2012 was set. On the second count a fixed term of imprisonment of 2 years commencing on 17 October 2007 and concluding on 16 October 2009 was imposed. For the third count, the applicant was sentenced to a fixed term of imprisonment of 2 years commencing on 17 October 2008 and concluding on 16 October 2010. The overall effective sentence was 4 years 6 months commencing on 17 October 2007 and concluding on 16 April 2012 with a non-parole period of 3 years concluding on 16 October 2010. The earliest date that the applicant is eligible to be released to parole is on 16 October 2010. 7 The Judge had found that the applicant was entitled to a utilitarian discount of 15 per cent for the pleas of guilty. 8 The facts of the offences for which the applicant came to be sentenced by the sentencing Judge may be shortly stated as follows: Count 1: On 2 June 2005 a pharmacy was broken into and 2,155 boxes of pseudoephedrine were stolen. The applicant came into possession of 1,011 of those boxes. When he was told by a co-offender that the tablets could be used to manufacture methylamphetamine, he sold them for $20,000. During the meeting at which he was paid, there was a discussion about whether or not he could obtain more of the precursor. Count 2: The applicant sold a co-offender a stolen Nissan SX 200 on 27 September 2005 for $3,500. It had been stolen in the early hours of 26 September 2005. Count 3: In the early hours of 25 October 2005, a Nissan SX 200 was stolen. The applicant sold the car to a co-offender for which he received $2,500. Form 1 offences: Police found $39,000 in cash in the applicant's bedroom. This was the offence of knowingly dealing with the proceeds of crime contrary to s 193B(1) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. Police also found a portable radio which was tuned to police frequencies. It had previously been stolen from the New South Wales Fire Brigade. This was an offence contrary to s 527C of the Crimes Act which is punishable by imprisonment for 6 months. 9 The applicant was born on 5 August 1981 and was 26 years old at the time of sentence. Evidence of his subjective circumstances was before the sentencing Judge by way of the tender of a report from Sam Borenstein, a clinical psychologist, and a Probation and Parole pre-sentence report. Jody Balesini, the applicant's partner, gave evidence during the proceedings on sentence. 10 Mr Borenstein in his report described the applicant's childhood as being chaotic and dysfunctional which had led to behavioural problems from early adolescence and to criminal offending. The psychologist opined that the applicant's crimes reflected that he was stuck in adolescence and may well feel tempted to return to a lifestyle which in the past allowed for inclusion and a degree of protection within a criminal network. The applicant required, in the psychologist's opinion, careful guidance and assistance to help him reconstruct his life. Ms Balesini testified that she believed the applicant now understood that he had to change or keep returning to gaol. She was committed to the relationship but said that this was his last chance and believed that he would change. 11 The sentencing Judge accepted that the applicant since being in prison had made efforts to educate himself and had obtained qualifications in welding and metal work. Her Honour, however, was not satisfied that there was any convincing evidence that he had taken positive steps towards changing his life. There had been, her Honour noted, at least two periods in his life when he was employed and earning money. Her Honour observed that the applicant instead of persisting with this preferred "to engage in criminal activities which provided him sufficient funds to live for five years without work or financial support." (ROS at p 12-13). She was unable to conclude that the applicant was unlikely to re-offend or had good prospects of rehabilitation.

12 The applicant relies in this appeal upon the following grounds: 1. The sentencing Judge erred in her approach to totality and in failing to give full effect to her finding of 'special circumstances' in the context of the accumulation on sentences imposed by his Honour Judge Norrish QC. 2. A different less severe sentence is warranted and ought to be imposed. The grounds of appeal may be conveniently dealt with together. 13 The applicant does not complain as to the individual sentences imposed. The focus of the complaint is on the total effect of the sentence when considered by reference to the sentences imposed upon him by Norrish DCJ on 1 December 2005. On that day the applicant was sentenced to an overall effective sentence of 4 years commencing on 6 November 2005 and expiring on 5 November 2009 with a non-parole period of 2 years expiring on 5 November 2007 for offences of stealing a motor vehicle, conspiracy to pervert the course of justice, larceny, attempt to steal a motor vehicle and accessory after the fact of receiving. Three offences on a Form 1 being the disposal of stolen property, having goods in custody and stealing a motor vehicle were taken into account by Norrish DCJ when imposing sentence. 14 Norrish DCJ had found special circumstances permitting an adjustment to the statutory ratio between the non-parole period and balance of term of the sentence. His Honour said: "The special circumstances are firstly the partial accumulation of three of the sentences which itself is a special circumstance require adjustment of the non-parole periods. I also find more importantly , as special circumstances the need for you to be assisted on your release from custody both to adjust to community living and to obtain employment and pursue educational opportunities and perhaps to receive some counselling in relation to your use of cannabis." 15 The offences for which the applicant came to be sentenced by the sentencing Judge were committed whilst he was on bail for the offences for which he was sentenced by Norrish DCJ. 16 It was submitted for the applicant that the sentencing Judge had found special circumstances being the applicant's need for support and supervision on his release from prison and need of assistance in finding employment which were in part the same findings made by Norrish DCJ. However, by virtue of the partial accumulation of the sentence with the sentence imposed by Norrish DCJ, the finding of special circumstances did not result in a non-parole period which was less than 75 per cent of the total sentence actually to be served. The applicant pointed out that the minimum period of his continuous custody will be from 6 November 2005 (the commencement date of the sentence imposed by Norrish DCJ) until 16 October 2010 which is a total effective non-parole period of just under 5 years with an additional term of 18 months. The non-parole period is around 76 to 77 per cent of the total sentence. It was next submitted that her Honour did not appear to have taken into account that an accumulation of sentence itself might result in a finding of special circumstances. The applicant contended that this Court should intervene to re-establish the proportion of the non-parole period and the balance of term established by Norrish DCJ or to maintain the length of the additional term of two years set by his Honour. 17 The applicant cited Cicekdag v Regina [2007] NSWCCA 218 in which it was held by James J at [49] - [50] (with whom Giles JA and Hislop J agreed) that the non-parole period imposed did not make allowance for the mental condition and consequent need for rehabilitation and supervision of the applicant in that case which had been identified by the Judge as special circumstances. 18 The effective balance of the term of the sentence imposed by Norrish DCJ had not expired when the applicant came before the sentencing Judge. The non-parole period had expired on 5 November 2007 and he had been held in custody bail refused from that time. As the sentence imposed by Norrish DCJ had not expired, it was necessary for the sentencing Judge to include this sentence in her consideration of the principle of totality: Mill v The Queen (1988) 166 CLR 59.

19 As was explained by the Court (Spigelman CJ, Whealy and Howie JJ) in R v MMK [2006] NSWCCA 272 at [11]: " One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616." 20 The totality principle is designed to avoid a court imposing a 'crushing' sentence in the sense that "it will induce a feeling of hopelessness and destroy any expectation of a useful life after release": R v M.A.K, R v M.S.K [2006] NSWCCA 381 at [17]. 21 The sentencing Judge, it is clear, carefully considered the principle of totality. Her Honour said (ROS at 17): " In determining sentence for these offences I will have regard to the sentences imposed by Norrish J to consider what sentence appropriately reflects the totality of the offender's behaviour." 22 Her Honour considered in detail the offences which had been before Norrish DCJ and then said (ROS at 19): " In setting sentences for the present offences, I take into account that the non-parole period which I will impose will accumulate onto the end of the non-parole period imposed by his Honour. To that extent I have moderated to a degree the overall sentence that I will impose and will allow a longer than usual additional term to give the offender the benefit of supervision and support on his release from prison. " 23 As the applicant had spent twenty-one days in custody for the present offences before being sentenced by Norrish DCJ, her Honour backdated the sentence to 17 October 2007. Her Honour found special circumstances (ROS at 20): "… b eing that the offender will need support and supervision on his release from prison and will need assistance in finding employment." 24 The sentence imposed by the sentencing Judge taking into account the two years which the applicant had previously served, the total period he would spend in custody and his age of 26 years was not a "crushing sentence". It cannot be characterised as destroying any expectation of a useful life after release. The applicant's complaint, however, was not expressed in the terms that the sentence was "crushing". The principal focus of the applicant's challenge was, however, that the finding of special circumstances did not result in a non-parole period that was less than 75 per cent of the combination of the sentences imposed by the sentencing Judge and by Norrish DCJ. 25 Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances. The size of an adjustment to the statutory ratio special circumstances having been found is essentially a matter within a Judge's discretion. As was observed by Spigelman CJ in Regina v Cramp [2004] NSWCCA 264 at [31] the size of an adjustment for special circumstances "raises so many matters of a discretionary character that this court should be very slow to intervene" and will not usually be interfered with unless the non-parole period is found to be manifestly inadequate or manifestly excessive: see Cramp per Spigelman CJ at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. There have been cases where this Court has intervened where it seems that the proportion of an effective non-parole period to an overall sentence has failed to give effect to a finding by a Judge of special circumstances: see for example Cicekdag v Reginaper James J at [50].

26 The ultimate constraint, as was explained by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 at [63], upon a sentencing Judge's discretion following a finding of special circumstances, is that: "…the non-parole period must itself appropriately reflect the criminality involved in the offence." 27 The adjustment by the sentencing Judge to the statutory ratio for special circumstances is to be found in the sentence she imposed of 4 years 6 months with a non-parole period of 3 years. That non-parole period is 66 per cent of the sentence. When considered in combination with the two years imprisonment of the sentence imposed by Norrish DCJ, the effective non-parole period was a little over 76 per cent of the combined sentences. 28 The sentencing Judge was neither obliged to adjust the statutory ratio to the extent determined by Norrish DCJ nor was she required to maintain the balance of the term of 2 years which his Honour had set. His Honour's adjustment was such that the non-parole period was 50 per cent of the total sentence which, with respect, was generous to the applicant. An adjustment of 50 per cent to the statutory ratio to maintain the proportion established by Norrish DCJ would have resulted in an effective sentence of 4 years 6 months with a non-parole period of 1 year 3 months being imposed by the sentencing Judge. A non-parole period of this length would not, in my opinion, appropriately reflect the criminality involved in the applicant's offending. 29 The offences for which the applicant stood to be sentenced before her Honour were of a serious nature and were aggravated by the fact that they were committed whilst he was on conditional liberty for offences of a similar nature. As the sentencing Judge said (ROS at 11): " These offences were committed while the offender was awaiting sentence on substantially similar offences. They represent a continuous course of offending and were planned and organised criminal activity." 30 Whilst an accumulation of sentence might constitute special circumstances; see for example R v Simpson; R v Close (1993) 31 NSWLR 743 the sentencing Judge was not obliged to find special circumstances for this reason. I am not persuaded that her Honour, an experienced sentencing Judge, overlooked this consideration although no mention was made of it during the remarks on sentence. It is apparent from the sentencing Judge's remarks that her careful reflection upon the sentences to be imposed included special circumstances. There is no reason to infer that the sentence was anything other than the sentence that had been intended.

31 Unlike the circumstances in Cickedag, the balance of the term of the sentence of 1 year 6 months in this case adequately meets the applicant's need for support and supervision and for assistance in finding employment upon release. 32 The non-parole period which her Honour determined was, in my view, a legitimate exercise of the sentencing discretion and was appropriate for the seriousness of the offences. I am not satisfied that a lesser sentence was warranted. 33 I propose that leave to appeal be granted but the appeal be dismissed.

06/03/2009 - Typographical - Paragraph(s) Cover sheet

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