Stojanovski v R

Court of Criminal Appeal (NSW)|2013-12-03|Before: Hoeben CJ, Simpson J, Johnson J

Judgment 1HOEBEN CJ at CL: I agree with Simpson J. 2SIMPSON J: The applicant seeks leave to appeal against the severity of three sentences imposed upon him in the District Court at Newcastle on 11 December 2012 following his pleas of guilty to three counts on a Court Attendance Notice. 3The charges to which the applicant pleaded guilty were: (i)two counts of supplying prohibited drugs (cannabis and methylamphetamine); (ii)one count of possession or use of a prohibited weapon (a "stun gun") without a permit. 4By s 25(1) of the Drug Misuse and Trafficking Act 1985 the cannabis offence exposed the applicant to a maximum penalty of imprisonment for 10 years; by the same section, the methylamphetamine offence exposed the applicant to a maximum penalty of imprisonment for 15 years; and by s 7(1) of the Weapons Prohibition Act 1998 the prohibited weapon offence exposed him to a maximum penalty of imprisonment for 14 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") a standard non-parole period of 3 years is prescribed in respect of that offence. 5In respect of the charge of supply of methylamphetamine, Maiden DCJ imposed a sentence of imprisonment for 4 years, with a non-parole of 2 years, commencing on 11 January 2012; in respect of the offence of supply of cannabis, he imposed a sentence of imprisonment for 3 years and 6 months, with a non-parole period of 1 year and 6 months, commencing on 11 October 2012, and therefore accumulated by 9 months on the previous sentence; in respect of the prohibited weapon charge, he imposed a sentence of imprisonment for 3 years with a non-parole period of 2 years, also to commence on 11 October 2012. The overall sentence is therefore one of imprisonment for 4 years and 3 months, commencing on 11 January 2012 and expiring on 10 April 2016, with a non-parole period of 2 years and 9 months expiring on 10 October 2014. In so structuring the aggregate sentence, his Honour found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, justifying a variation in what would otherwise have been the statutory ratio of 75 per cent to 25 per cent between the total sentence and the non-parole period. The reasons given for the departure from the s 44(2) ratio were the applicant's demonstrated rehabilitation and his re-entry into the workforce, about which I will say more in due course. 6The manner in which the sentences were structured calls for some examination. The sentence for the methylamphetamine offence commenced on 11 January 2012; the non-parole period is to expire on 10 January 2014, the total term on 10 January 2016. The sentence for the cannabis offence commenced on 11 October 2012; the non-parole period is to expire on 10 April 2014, the total term on 10 April 2016. The sentence for the prohibited weapon offence commenced on 11 October 2012; the non-parole period is to expire on 10 October 2014, the total term on 10 October 2015. The effect of that structuring is that, so far as the non-parole periods are concerned, the period from 11 January 2012 to 10 October 2012 (9 months) is wholly referable to the methylamphetamine charge. The period from 11 October 2012 to 10 January 2014 encompasses all three sentences; the period from 11 October 2012 to 10 April 2014 (18 months) encompasses both the cannabis and the prohibited weapon sentences; and the period from 11 April 2014 to 10 October 2014 (6 months) is wholly referable to the prohibited weapon offence. There is no part of the non-parole periods that is solely referable to the cannabis offence. (With respect to the total terms, the last sentence to expire is that imposed in respect of the cannabis offence. There is a period of three months (11 January 2016 - 10 April 2016) referable to that sentence; otherwise, there is considerable overlap between the sentences.) 7The result is that, having regard only to the non-parole periods, the period to be spent in custody referable solely to the methylamphetamine charge is 9 months; the cannabis sentence is to be served wholly concurrently with one or the other of the other sentences; and the period to be spent in custody wholly referable to the prohibited weapon charge is 6 months.

The facts 8The facts were put before the sentencing judge by way of a detailed Agreed Statement. It may, despite its detail, be summarised succinctly. 9The drug offences were committed over a period beginning in mid-January 2011 and expiring in early May of that year. Put shortly, the applicant operated a drug supply business from his home in a suburb of Newcastle, using a mobile telephone. His wife, who was also charged, assisted (unwillingly) from time to time. The drugs were supplied in small quantities, usually suitable for use by the purchaser, although there were some occasions in which the quantities supplied or to be supplied were such as to suggest that the purchasers intended to resell. The operation was plainly a commercial one. The total quantity of drug supplied was never clearly identified. 10On 2 May 2011 police executed a search warrant at the applicant's home. Various items clearly associated with the drug dealing business were located. These included scales, smoking pipes, resealable plastic bags, a number of SIM cards, mobile telephones, cannabis leaf and methylamphetamine in crystal form. The applicant was in possession of $1,325 in cash. The "stun gun" was found at the bottom of a stairway among tools. 11The applicant was arrested on the same day. He was eventually granted bail on 20 September of that year but not released until 5 October.

The applicant's personal circumstances 12Evidence of the applicant's personal circumstances was given by him in sworn evidence, and via a number of reports, including one from Mr Sam Borenstein, a clinical psychologist. Other reports were from the Hunterlink Recovery Services, and the Glen Centre, an alcohol and other drug rehabilitation centre. From these, the following personal history emerged. 13The applicant was born in Macedonia in September 1964. He was 47 years of age at the time of the offending, 48 at sentencing. His family migrated to Australia in about 1967, when the applicant was three years of age, and lived in the Newcastle area. The applicant has two younger siblings. There were difficulties in his relationship with his father, who he described as "strong headed, very strict" and frequently physically abusive. 14The applicant did not attract adverse attention during his schooling. On leaving school he undertook and completed an apprenticeship in automotive engineering. He had stable employment in that capacity, and later as a bar manager. 15The applicant remained in the family home until he left, at the age of 27, to marry. He subsequently (in about 1993) purchased an orange juice run and became self-employed. As he gave his history to Mr Borenstein, during this time he was introduced to drugs. At the time of the offending, drug dealing was the applicant's sole source of income. He was not, and had not been for some years, in paid employment. 16The applicant's marriage is a successful and happy one, although his wife opposed his drug taking and drug dealing. There are two children of the marriage, now aged 19 and 15. The applicant's sister is also supportive, to the extent of offering financial security for bail on his arrest. 17The applicant has been drug dependent for about 20 years. The commencement of his drug use appears to have coincided with his becoming self-employed, and, also, perhaps, with the death of his father which appears to have been in about 1990. He began by smoking marijuana. He progressed to heroin and amphetamines. As a result he has served a number of terms of imprisonment, twice (1997, 2003) for drug supply offences; other offences on his record include driving while disqualified, malicious wounding, and being in possession of goods suspected of having been stolen. 18The applicant gave evidence concerning his possession of the "stun gun". He said that the weapon was given to him but never used by him and that he simply put it in a bag and left it there. He said he telephoned the owner who told him to keep it. He said he had not investigated whether it was operable or not. 19There was before the sentencing judge impressive evidence of rehabilitation. As mentioned above, the applicant remained in custody until released on bail on 5 October 2011 when he was admitted as an inpatient to the rehabilitation facility known as The Glen. He remained in that facility until January 2012, when he was discharged. The Assistant Co-ordinator of that Centre provided a very favourable report as to his rehabilitation. He said: "[The applicant] has participated very well in all aspects of the program. The program includes morning groups, nightly AA and NA meetings, one-to-one counselling, work and chores and sports. [The applicant] also participated in anger management groups and parenting programs. [The applicant] has continually identified his family as a major motivator for him to change his life. The counselling staff have been very happy with the amount of progress [the applicant] has made in his stay in our program. He has been quick to talk to counsellors when things have come up for him. He has consistently expressed a fear of returning home and he is under no illusions that it will not be easier to stay clean and sober ..." 20From The Glen the applicant went to another rehabilitation program conducted by the Hunterlink Recovery Services, and known as "the Star" program. It seems that this programme was somewhat less restrictive, in terms of the applicant's personal liberty, than that of The Glen. The Program Co-ordinator of that organisation also reported favourably, saying: "Since his admission into the STAR program, [the applicant] appears to have gone from strength to strength in his personal recovery by maintaining his commitment to abstaining from drugs and alcohol, building/renovating his family home and gaining some employment. These achievements have seen some delays due to ill health and medical concerns; but [the applicant] continues to make permanent changes in his life for his future and the future of his family. [The applicant] has almost completed the STAR program and has successfully addressed his addiction issues, which are directly related to the matters before your court ..." 21Mr Borenstein concurred in these two assessments. He diagnosed "substance dependency" which, he said, was "in sustained full remission". He said: "[The applicant] has participated actively and conscientiously in rehabilitation. He is committed to remain on the path of abstinence. [The applicant] will require programs such as NA [Narcotics Anonymous] or the Twelve Step Program over many years, and quite likely his lifetime." He considered that the applicant could benefit from individual psychological intervention, associated with his early life and the issues concerning his father. 22The applicant's own evidence confirmed the history he had given to Mr Borenstein, and the assessments made by the rehabilitation facilities. He was, at the time of sentencing, employed in a casual capacity in the local fishermen's co-operative. 23During the course of the sentencing proceedings, some attention was given to the level of objective gravity of the offences. In written submissions, the Crown put: "7. The level of offending is above that of a user dealer or a street level dealer. They [the applicant and his wife] were operating a sophisticated business that involved some planning. 8. The level of offending places them slightly below the middle of the range for offences of this type." It is apparent from the context that these submissions were directed to both of the drug offences.

The Remarks on Sentence 24The sentencing judge recounted the facts only briefly. With respect to the classification of objective gravity, he said: "What is clear from the facts, that the operation that was being undertaken, as became known to the police, was of a longstanding commercial operation by a person well known in the community to whom was a person who was readily identifiable by persons who were users of drugs ..." and "In respect of the objective criminality, I do find that although he was a drug user and a person who was addicted to drugs, that there was a monetary benefit to him ... ... I find that in terms of his dealing that it is in what we might describe as the mid range, he was not one of the major dealers that I assume the police were looking for, but nonetheless he provided drugs to, and I assume, younger persons than he, which involved them in their addiction and one can easily assume in their criminal behaviours." (italics added) His Honour noted two features specifically relevant to the objective gravity of the offences. The first was that the operation was for financial reward. The second was the multiplicity of acts that constituted each of the two drug offences. Accordingly, he considered that authority demanded that he impose, having regard to both general and specific deterrence, a penalty "that is well recognised and is severe". 25With respect to rehabilitation, and notwithstanding the impressive evidence, his Honour was somewhat sceptical. He said: "The Court does find that in respect of these matters that he has been released from his addictions at this point of time. However the Court is cognisant that he may, under pressure, at some point of time, revert to that behaviour and possibly re-offend in the future. The question that arises for the Court is how should that matter be taken into account, particularly in circumstances where the objective seriousness of these offences is severe." (italics added) 26He turned to the explanation given by the applicant for his possession of the "stun gun", which he rejected. He considered that the weapon was: "... there in case an eventuality presented itself where he may have need of such an item." He also considered it a possibility that it may have been used in exchange for drugs. 27His Honour made the finding of special circumstances (Sentencing Procedure Act, s 44(2)) to which I have already referred. He determined that, in recognition of the pleas of guilty, he would allow the applicant a reduction of 25 per cent on the sentences he otherwise would have imposed. 28His Honour made reference to the periods of time that the applicant had spent in rehabilitation. While he did not expressly say that he intended to make an allowance for the period of quasi custody when the applicant was in residence at the Glen and the STAR, it is apparent that he did so. It is apparent because, although the applicant was at liberty on bail until the sentencing date (11 December 2012), the first of the sentences commenced on 11 January of that year. In other words, the sentence was backdated for almost 11 months. It is to be borne in mind that the applicant had also spent a period of 5 months in custody before being released on bail. Nevertheless, the allowance made was a generous one.

The application for leave to appeal The grounds of the application 29Five grounds of the application were pleaded. They are: "Ground 1: His Honour erred in determining the objective seriousness of the offending. Ground 2: His Honour erred in failing to take into account the quantity of drugs involved in the supply offences. Ground 3: His Honour erred in failing to take into account the remorse shown by the offender. Ground 4: His Honour erred in failing to consider the standard non-parole period when imposing the sentence for the weapons matter. Ground 5: The sentence is manifestly excessive." On the hearing of the application, ground 4 was abandoned. Ground 1: objective seriousness 30The substance of the argument put on behalf of the applicant was not, strictly, that "mid range" was not an apt characterisation of the offending; rather, emphasis was placed upon the submission made by the Crown at sentencing which placed the offending at "slightly below the middle of the range for offences of this type". 31Failure to accept this, it was submitted, at least in the absence of any signal that his Honour was giving consideration to departing from that assessment, amounted to a denial of procedural fairness. Reference was made to Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126. 32In respect of this ground, some emphasis was also placed on the quantity, particularly of cannabis, that was the subject of that offence. 33In my opinion this ground of the application cannot be sustained. The circumstances are very different from those that applied in Cherdchoochatri. In that case, the offender gave evidence of events that, if accepted, could have mitigated significantly his culpability for the offence. Although he was not cross-examined by the Crown (for reasons that are set out in that judgment) the sentencing judge, without notice to the offender, rejected the explanation. 34That is not this case. A sentencing judge is not bound to accept the Crown's assessment of the objective gravity of an offence. That assessment is a matter entirely within the judge's province. In any event, there is very little difference between "slightly below the middle of the range" and "what we might describe as the mid range". 35When regard is had to the number of transactions, the period over which they took place, the fact that they were for monetary gain (as well as, and as a means for, feeding the applicant's own addiction), the assessment of objective gravity was one that was well open to Maiden DCJ. 36I would reject this ground of the application. Ground 2: quantity of drugs 37Although it was put that the sentencing judge failed to consider the quantity of drugs involved, it is very difficult, from the Agreed Facts, to quantify the total amount of drugs supplied by the applicant. At times, the transactions were described in terms of monetary value; at others, in terms of the weight of the drugs. As mentioned in the outline of facts above, on the whole the quantity involved in any individual transaction was relatively small, sometimes quite small. However, as against that must be balanced the repetition of the dealing, and its sustained nature. 38In my opinion, the applicant has failed to make good this challenge. Ground 3: remorse 39Remorse is expressly recognised as a mitigating factor in s 21A(3)(i) of the Sentencing Procedure Act (but only if, relevantly, the offender has provided evidence of having accepted responsibility for his or her actions). There is no doubt that the applicant had provided such evidence, and gave oral evidence to that effect. 40It is true that the sentencing judge did not mention the applicant's expressed remorse. The submission was therefore made that: "In considering the subjective case of the [applicant] no consideration was given to the remorse expressed by the [applicant] as contained in both his evidence ... and the report of psychologist Sam Borenstein ... failure to give effect to the remorse felt by the [applicant] led to an error in the ultimate sentence imposed." 41In my opinion, remorse is to be seen as a mitigating factor because it is a concomitant of rehabilitation, meaning that future offending is unlikely or less likely. Rehabilitation was treated by his Honour in some depth. Even if his Honour had expressly referred to, and accepted, the evidence of remorse as an independent factor, it could not have had any real bearing on the outcome. 42I would reject this ground of appeal. Ground 5: manifestly excessive? 43The submission was made that, even if none of the above grounds is upheld, the sentence (presumably the aggregate sentence) was manifestly excessive given the objective criminality of the offence taken in conjunction with the applicant's personal circumstances. 44I am unable to accept this. The drug dealing offences were plainly serious because of their sustained and repetitive nature. The applicant could derive no comfort from his previous record. 45It is true that the evidence of rehabilitation was very favourable, even though the sentencing judge was unpersuaded that it would have the degree of permanence that might be hoped. But general deterrence remained an important element in the sentencing decision. His Honour was plainly conscious of the market which the applicant was supplying with drugs, and the damage to end users and communities that is a result of drug dealing and drug use. I do not accept that the sentences, either individually or in aggregate, were manifestly excessive. 46I propose the following orders: (i)Leave to appeal each sentence granted; (ii)Appeal dismissed. 47JOHNSON J: I agree with Simpson J.

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