Sutton v R

Court of Criminal Appeal (NSW)|2016-10-26|Before: Gleeson JA, Fagan J, Adams J

CJ File Number(s): 2014/220134

Judgment

GLEESON JA: The applicant, Anthony Graham Sutton, seeks leave to appeal against the sentence imposed on him by the District Court at Tamworth on 7 December 2015.
The applicant had pleaded guilty to the following offences:

Count 1 - between 30 May 2014 and 25 July 2014, at South Tamworth, knowingly taking part in the supply of a prohibited drug (methylamphetamine), contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW). The maximum penalty for this offence is 15 years imprisonment.

Ground of appeal

The sole ground of appeal is that his Honour erred in taking into account a standard non-parole period of four years in relation to the firearms offence when the applicable standard non-parole period was three years.

Circumstances of the offending

The applicant came to the attention of police in 2014 during an investigation of the supply of methylamphetamine and illegal firearms in the Tamworth area. In June 2014, the applicant arranged for his nephew to meet an upper-level supplier in the Tamworth area, and later organised the supply to his nephew of 5 grams of methylamphetamine in exchange for $400. That supply took place on the Central Coast on 16 June 2014. After the applicant's nephew left the premises where the supply took place, he was stopped and searched by police who located 4 grams of methylamphetamine on him.
On 25 July 2014, police arrested and cautioned the applicant for the supply of methylamphetamine to his nephew. On the same day, police executed a search warrant at the applicant's home in Tamworth directed to the possession of a revolver, a silencer and drugs. The applicant was brought to his home by police during the execution of the search warrant. He cooperated and showed police the location of a black canvas toiletry bag inside one of the drawers of a plastic stack of sliding drawers in a detached garage which contained:

a seven shot .22 calibre revolver;
a plastic resealable bag containing .22 calibre bullets (comprising 87 .22 cartridges and 46 .22 Long rifle cartridges); and
a steel silencer.

A subsequent ballistics examination showed that the revolver was in working order, although the cylinder was required to be manually rotated for each shot. The end of the barrel was threaded (for attachment of the silencer). The revolver had a barrel length of less than 100 mm and accordingly was a prohibited pistol within the meaning of s 4C(1)(c) of the Firearms Act. The .22 calibre bullets were suitable for use in the revolver.
The firearm was unregistered and the applicant was not the holder of a firearms licence or permit. Nor was the applicant the holder of a permit or authorised to have in his possession a prohibited weapon, namely the silencer.

Subjective case

The applicant had a mostly unfavourable subjective case. The applicant was aged 51 at the time of sentence. He had not engaged in much work over his life. He had a lengthy criminal history for drug and property related offences (commencing in 1982 in New South Wales) and since 1990 had spent considerable time in gaol both in New South Wales and Queensland.
The pre-sentence report recorded that whilst the applicant has a history of drug dependence, he stated that he was not using illicit drugs at the time of his arrest. He claimed to have ceased using heroin upon the birth of his son in 2000. He had commenced on a pharmacotherapy program (suboxone) around 2010 and remained on that program whilst in custody.
The applicant has a number of disabilities, some related to his history as a heroin addict, and others relating to injuries to his lower back suffered in two motor vehicle accidents in his early twenties.

The sentencing judgment

The sentencing judge found that the firearm had been left at the applicant's residence by another person. This finding was most favourable to the applicant because his Honour expressed scepticism about the applicant's evidence on that topic. For this asserted fact to be a mitigating factor, the applicant was required to prove it on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [41]-[42]. His Honour's reasons did not refer to the standard or burden of proof for this fact, submitted as it was in the applicant's favour.
The judge found that the firearms offence was below the middle of the range of relative seriousness, "but not by that much". In arriving at that conclusion the judge referred to a standard non-parole period of four years as a guidepost, and continued: One needs to characterise the objective seriousness of that particular crime for the purposes of determining its influence upon the sentencing process as a guidepost in sentencing, consistent with both the act and what the High Court has had to say in Muldrock (ROS 8-9).
In sentencing for the firearms offence, the judge took into account the three matters on the Form 1. Reference was made to the decision of this Court in Abbas v R [2014] NSWCCA 188, that the effect of taking matters into account on a Form 1 would be to increase the sentence which otherwise would be imposed unless there are exceptional circumstances. The judge found (as was conceded by the applicant) that there were no exceptional circumstances.
The judge regarded the firearms offence as the more serious offence. He found that the applicant knew the consequences of what he was doing. He observed that the applicant was on parole at the time of the 2014 offences and that the 2007 offence involved the use of a firearm and must have been a serious offence because it attracted a head sentence of 7 years and a non-parole period of 4 years. The judge also observed that the applicant had very deliberately involved himself in the drug supply offence.
The judge found that that there were no special circumstances to vary the statutory ratio under s 44(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).
The judge referred to the applicant's subjective case outlined above, including his physical disabilities and his having spent a large part of his life as a heroin addict and a relatively petty criminal.
Taking into account the respective discounts for the guilty pleas, the judge imposed the aggregate sentence indicated.

Ground 1

The applicant pointed to the judge's incorrect statement of the standard non-parole period for count 2 as being four years. The applicable standard non-parole period was in fact three years.
The applicant submitted that the error in the indicative sentence for count 2 was material because it did affect the aggregate sentence imposed. The applicant pointed to the passage in the remarks on sentence set out at [17] above.
The Crown acknowledged that the judge incorrectly stated the standard non-parole period at two points in his reasons. The Crown accepted that the judge's misstatement of the standard non-parole period for count 2 led to error in the indicative sentence specified for count 2. However, the Crown emphasised that the applicant's appeal related to the aggregate sentence imposed upon him and not the judge's error in relation to the indicative sentence. Reliance was placed on the statement in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell v The Queen) at [42] that not all errors in the sentencing process vitiate the exercise of the sentencer's discretion.
The Crown submitted that the error in the indicative sentence for count 2 had no material effect on the aggregate sentence imposed. This argument relied on treating the indicative sentence for count 2, (taking into account the three charges on the Form 1) of two years and six months, as a head sentence, and given that no special circumstances were found, calculating the non-parole period for count 2 as 22 ½ months applying the usual statutory ratio under s 44 of the Sentencing Act.
The Crown suggested that another way of assessing whether the error was material to the aggregate sentence was to consider the accumulation of the indicative sentences. It was submitted that the aggregate sentence is well within the range given the seriousness of the two offences, the applicant's previous criminal history, and that he was in breach of parole at the time of the subject offending.

Decision

Unfortunately, during the sentencing hearing, the judge was inadvertently misled by the Crown and counsel for the applicant who both informed him that the standard non-parole period for count 2 was four years. That overlooked that the increase in the standard non-parole for an offence contrary to s 7(1) of the Firearms Act from three years to four years, only applies to offences committed on or after 21 August 2015: Part 5 of Schedule 1 of the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 (NSW). Here, the firearms offence occurred on 25 July 2014.
It was common ground that the misstatement by the sentencing judge in the standard non-parole period for the firearms offence led to error in the indicative sentence specified for count 2. The question raised by this appeal is whether that error, which was undoubtedly material to the indicative sentence for count 2, enlivens the Court's power to intervene and it becomes its duty to resentence. That raises the question of the function of this Court under s 6(3) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act).
In Kentwell v The Queen at [42] the plurality of the High Court, after referring to the differing views affecting the interpretation of s 6(3) expressed by the members of this Court in Baxter v The Queen (2007) 173 A Crim R 284; [2007] NSWCCA 237, indicated that the analysis of Spigelman CJ should be accepted. The plurality explained at [42]: When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. (Citations omitted)
The example given by the High Court of an error in sentencing which would not vitiate the exercise of discretion is instructive. Reference was made to an error by the court which sentences an offender to imprisonment contrary to the requirement in s 44(1) of the Sentencing Act, by first setting the term of the sentence, rather than to first set the non-parole period and then set the balance of the term.
The Crown's submission that the aggregate sentence imposed here is well within the range of an appropriate sentence is answered by another passage in Kentwell v The Queen. Assuming error in the House v R ((1936) 55 CLR 499; [1936] HCA 40) sense is established, the plurality of the High Court in Kentwell v The Queen explained at [44]: In assessing the prospects that the appellant's appeal would succeed, it was wrong to determine that the appellant had failed to demonstrate that substantial injustice was occasioned by the sentence. This is best understood as a conclusion that the aggregate sentence did not impress the Court, upon summary review, as excessive. The appellant is entitled to be sentenced according to law. The issue for the Court's consideration was whether upon the hearing of the appeal it might conclude, taking into account the full range of factors including the evidence of the appellant's progress in custody and current mental state, that a lesser sentence is warranted in law.
The Crown referred to AB v R [2014] NSWCCA 31 as an example of an error in the statement of a maximum penalty of an indicative sentence which was held not to be material to the aggregate sentence. That case is distinguishable from the present. There an aggregate sentence of 17 years with a non-parole period of 14 years was imposed for 15 offences and the offender had asked for his guilt in respect of a further 12 offences listed on Form 1 documents be taken into account. Two of the offences charged involved acts of indecency upon a person under the age of 16 years, contrary to s 61N(1) of the Crimes Act. The sentencing judge had misstated the maximum penalty under s 61N(1) as being seven years, when it was in fact two years. For those two offences, the judge indicated sentences of six months. Although no ground of appeal was directed to this error, the Crown had properly drawn the matter to this Court's attention on the appeal. RA Hulme J (Beazley P and Schmidt J agreeing) said at [68] that "the error as to the statement of the maximum penalty had no material bearing upon the assessment of the aggregate sentence. No correction by way of resentencing was called for".
The conclusion in AB v R that the error in the statement of the maximum penalty for the s 61N(2) offences was not material to the aggregate sentence imposed is explained by the particular circumstances of that case where indicative sentences of six months for each of the indecent assault offences reflected, among other considerations, the objective seriousness of those offences, the maximum penalty being two years, and the large number of offences which were the subject of the aggregate offence imposed.
The present case is quite different. The misstatement of the standard non-parole period for the firearms offence in the course of sentencing is plainly an important error. The standard non-parole period was described in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] as one of the two legislative guideposts; the other being the maximum sentence. The High Court described the significance of the standard non-parole period (at [31]) as follows: The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case.
Here the sentencing judge imposed an aggregate sentence in respect of two counts, one of which attracted a standard non-parole period. The standard non-parole period for the firearms offence was a matter to be taken into account in determining the appropriate sentence by way of an aggregate sentence: s 54B(2) Sentencing Act. The sentencing judge was also required in determining an aggregate sentence to indicate and make a written record of the non-parole period he would have set for the firearms offence, being an offence to which a standard non-parole period applied: s 54B(4) Sentencing Act. His Honour failed to do so.
Accepting that the error in the indicative sentence for count 2 was material, the sentencing judge mistook one of the two legislative guideposts when sentencing the applicant. Kentwell v The Queen at [42] makes clear that such an error having been established in the exercise of the sentencing discretion, this Court need not assess whether and to what degree the error influenced the outcome. The sentencing discretion has miscarried; therefore it is the duty of this court to exercise the discretion afresh.
One further matter should be mentioned. Neither party sought to characterise the error in the present case, where an aggregate sentence was imposed, as of a limited type which only affected a discrete component of the outcome. The correct approach to such errors in sentencing was not the subject of argument, nor is it necessary to express any view on that matter for the disposition of the appeal. Accordingly it is not necessary to consider whether, in cases where the error is limited and only affects a discrete component of the outcome, a more confined approach to the re-exercise of the sentencing discretion is consistent with Kentwell v The Queen: see the differing views discussed in Martin v R [2016] NSWCCA 104 at [93]-[111] (RA Hulme J); cf at [2]-[4] (Bathurst CJ).
Ground 1 of the appeal has been made out and there should be a grant of leave to appeal.

Re-sentence

Error having been established, it becomes this Court's duty to re-sentence unless in the exercise of its discretion it concludes that no sentence, whether more or less severe, is warranted and should have been passed: Kentwell v The Queen at [38].
The Crown submitted that if the Court concludes there was error in the exercise of the sentencing discretion, then no lesser sentence is warranted in law taking into account the full range of factors affecting sentence: s 6(3) of the Criminal Appeal Act.
Counsel for the applicant relied in this Court upon an affidavit from the applicant's solicitor as to the applicant's current ill-health, specifically abdominal pain related to gallstones which seems to have been first reported whilst in custody in January 2016. Evidence of events that have occurred post-sentence, including current ill-health, is admissible for the purpose of determining whether a sentence should be substituted under s 6(3) of the Criminal Appeal Act: Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [124] (Johnson J; McClellan CJ at CL and Adam J agreeing).
Counsel for the applicant did not rely on this evidence for a submission that imprisonment would be a greater burden on the applicant by reason of ill-health, or that there is a serious risk that imprisonment would have a grave adverse effect on the applicant's health.
Nor was there any challenge to the authorities referred to by the Crown to the effect that it is only in a relatively rare case that ill-health will be a factor tending to mitigate punishment: R v Smith (1987) 44 SASR 587 at 589 (King CJ), referred to with approval in R v Badanjak [2004] NSWCCA 395 (R v Badanjak) at [9] (Wood CJ at CL, McClellan AJA and Smart AJ agreeing): Anastasiou v R [2010] NSWCCA 100 at [22]-[23] (Rothman J, McClellan CJ at CL and James J agreeing); Leighton v R [2010] NSWCCA 280 at [35]-[36] (Price J, Simpson J and Howie AJ agreeing).
Rather, counsel for the applicant relied upon this evidence for a submission that there should be a finding of special circumstances on the basis of the applicant's ill-health.
It was asserted that the applicant has not received appropriate medical care since he has been at the Long Bay Correctional Centre. The applicant's solicitor gave evidence, on information and belief, of one occasion (on 27 September 2016) where the applicant said he was in pain, ended up on the floor of his cell in agony, and it was some three hours before prison guards arrived to assist. The applicant also complained of trouble with pain relating to gallstones in early October 2016.
To the extent that the applicant's medical records whilst in custody are in evidence, they demonstrate the provision of medical care for the applicant since 19 January 2016. That care has included assessments, tests with respect to the detection of gallstones in January and February 2016, referral for an ultrasound to his upper abdomen on 10 March 2016, and further tests when the applicant was admitted to Bathurst Base Hospital in July 2016 and again in August 2016. The applicant's medical records record that he has been prescribed various medications for pain relief, as well as anti-inflammatory medications.
Notes from Bathurst Base Hospital dated 7 August 2016 record that a cholecystectomy operation has been recommended. In the ordinary course, such invasive treatment would not occur until anti-inflammatory medications had taken their course. The applicant is presently held at the Long Bay Correctional Centre where the recommended operation can be performed nearby in a public hospital. The evidence does not establish that the applicant is not being provided with appropriate medical care by way of pain relief and anti-inflammatory medication in the meantime.
In R v Badanjak it was observed (at [11]) that it remains the responsibility of Corrective Services to provide appropriate care and treatment for prisoners and that most conditions can be adequately managed by those authorities without the need for mitigating the sentence that would otherwise be appropriate.
It may be accepted that the applicant is, from time to time, in pain related to his gallstones. Having regard to the recommendation in the hospital notes, it can be expected that if the gallstones do not pass, the applicant will likely undergo the operation that has been recommended. The fact that the applicant has not been advised of a date for such operation, apparently for security reasons, does not mean that the applicant has been denied appropriate medical care.
I am not persuaded that a finding of special circumstances should be made on the ground of the applicant's ill-health relating to gallstones.
It was not submitted by the applicant that this Court should make any different finding to that of the sentencing judge in relation to the objective seriousness of the firearms offence. That is not surprising given the nature of that offending. The authorities emphasise that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial injury. Accordingly sentences imposed for such offences must "operate as real disincentives to those otherwise attracted to the illegal possession of firearms": R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 (R v Howard) at [66] (Spigelman CJ; Grove J and Smart AJ agreeing).
As mentioned, the applicant had the benefit of a favourable finding that the firearm had been left at his home by somebody else. In his evidence during the sentencing proceedings, the applicant identified the firearm as belonging to his nephew Nathaniel Penn. The applicant gave evidence on sentence that Mr Penn and his friend, Mr Malavey, who were homeless, stayed at his house for about week and brought the pistol with them without his knowledge. He claimed he had only discovered it when moving the clothes they had left behind from the shed where they stayed into the house, and only had contact with it when storing it in the bottom drawer of the plastic drawers in the garage. He said he had not contacted police because he did not wish to "dob them in". He gave some contradictory evidence about his subsequent contact with those persons. He said first that he had not had contact with them since they had left, then that he had got in touch with them and "[t]hey've made their admissions to me", but that they did not appear to give evidence for fear of self-incrimination.
His Honour was rightly sceptical of the applicant's evidence on that topic. Nonetheless, the Crown did not contend for any different finding on appeal. Accepting that there was no evidence that the firearm was either used by or intended to be used by the applicant in some criminal activity, it remains significant that the applicant was keeping the firearm for somebody else. There is no reason to depart from the sentencing judge's finding that the objective seriousness of the firearms offence is just below mid-range.
First, compact firearms are particularly dangerous because of their capacity for concealment: R v Brown [2006] NSWCCA 249 at [23] (Spigelman CJ; Howie and Rothman JJ agreeing). This makes them suited for serious criminal activity. Here, the firearm was in working order, although the chamber had to be rotated manually between shots.
Secondly, the related matters on the Form 1 are also serious. There could be no legitimate purpose for the possession of a silencer. A silencer "is quintessentially a feature of weapons used in violent crimes": R v Howard at [66] (Spigelman CJ). It has been said that the possession of a silencer and pistol in relation to a drug supply business "adds a more serious connotation" to the firearm offence (R v XX [2009] NSWCCA 115 at [56] (Hall J, Tobias JA and Kirby J agreeing). The same may be said in the present case, even though there was no finding by the sentencing judge that the revolver and silencer was used or intended to be used by the applicant in some criminal activity. The applicant was holding the revolver, silencer and ammunition for others, who had no legitimate purpose for their possession of those items.
While the maximum penalty for the unauthorised possession of ammunition is only a fine (50 penalty units), in the context of the related prohibited firearms offence, the unauthorised possession of ammunition was nonetheless serious: R v Farrell [2015] NSWCCA 68 (R v Farrell) at [52] (Bellew J, Simpson and Rothman JJ agreeing) quoting Thalari v R [2009] NSWCCA 170 at [88].
There is little that operates in mitigation of sentence. The applicant's prior offences included armed robbery (in 2007) and possession of a prohibited weapon (in 1999). Those prior offences must have brought home to the applicant the illegality of what he was doing in possessing the firearm the subject of the current charge. Yet when cross-examined about the nature of his previous offence of armed robbery, the applicant was evasive, saying he could not remember what the prohibited weapon was that he was charged with possessing, and gave inconsistent evidence - first saying of the armed robbery "[t]here was a firearm involved", then asserting that "[t]there was no weapon. It was all the hearsay of witnesses".
The applicant's attempts to deflect responsibility for his prior offending involving the use of firearms, is indicative of an inability to accept responsibility for what is a serious offence. That the applicant's prior offences related to possession and use of prohibited firearms is relevant to the need for personal deterrence: R v Farrell at [42].
Further, the applicant was on parole at the time of the subject offences for armed robbery and related offences in 2007 which his Honour observed must have been serious having regard to the length of the sentence imposed. He has a lengthy criminal history. Against this, he has some physical difficulties arising from a back injury suffered as a result of motor cycle accidents and is also suffering pain from gallstones.
It is common ground that the aggregate sentencing provisions in s 53A of the Sentencing Act should be applied on re-sentence, as the sentencing judge had done. In relation to count 1, the drug supply offence, no submissions were advanced by the applicant complaining as to the indicative sentence of two years imprisonment, taking into account the 25% discount for the early guilty plea. Exercising my discretion afresh, I see no reason to vary that indicative sentence which should be treated as an indicative head sentence.
In relation to count 2, the firearms offence (including the three matters on the Form 1), I would be inclined to indicate a slightly higher head sentence of three years. Given the absence of any finding of special circumstances I would indicate a non-parole period of two years three months for count 2.
Nevertheless, having regard to the totality principle, I would allow for a greater degree of concurrency between those sentences. In my view, an aggregate sentence of three years non-parole and a balance of term of one year is within the range of appropriate sentences for the applicant's offending. No complaint was made by the applicant as to the backdating of the aggregate sentence to 1 May 2015. Accordingly I am not persuaded that a lesser (or greater) sentence is warranted in law.
For these reasons, I would propose the following orders:
Grant leave to appeal.
Dismiss the appeal.
FAGAN J: I agree with Gleeson JA.
N ADAMS J: I agree with Gleeson JA. In the exercise of my sentencing discretion I too am satisfied that no lesser sentence is warranted in law for the reasons expressed by his Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2016

Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015(NSW)

Drug (Misuse and Trafficking) Act 1985(NSW)s 25

Firearms Act 1996(NSW)s 7(1), ss 4C, 7, 36, 65

Criminal Appeal Act 1912(NSW)s 6(3), s 6

Crimes Act 1900(NSW)s 61N

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