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Court of Criminal Appeal 8 February 2000

REGINA v MRISH

[2000] NSWCCA 17

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING "EXCEPTIONAL CIRCUMSTANCES" SENTENCING ACT 1989, S5(2) FIREARMS ACT 1989, S(5) CRIMINAL LAW

Citation: Regina v Mrish [2000] NSWCCA 17
Court: New South Wales Court of Criminal Appeal
Date: 8 February 2000
Judges: Spigelman CJ, Hulme J, Carruthers AJ

Background

The applicant was convicted in the District Court of two counts of intentionally perverting the course of justice and pleaded guilty to one count of possessing a firearm. The offences arose from his efforts to undermine his brother's murder trial. He sought to obtain firearms and the protected addresses of prosecution witnesses, and he conducted a sustained surveillance campaign against the wife of his brother's co-accused, following her, sitting outside her home, and videoing her new residence after she moved.

Judge Davidson of the District Court sentenced the applicant to a minimum term of two years and three months (plus a nine-month additional term) on the more serious perverting-the-course-of-justice count, a concurrent fixed term of two years on the second count, and a fixed term of eighteen months on the firearms charge. His Honour took into account the applicant's lack of prior convictions, the substantial period he had spent in pre-trial custody (over fourteen months), his good character, the conditions of his extended bail, the element of entrapment by the undercover operative, and "exceptional circumstances" arising from the serious illness of the couple's eldest child.

The applicant sought leave to appeal against those sentences on three grounds: that the sentences were excessive, that the sentencing judge failed to find "special circumstances" under the Sentencing Act 1989 to adjust the statutory ratio between minimum and additional terms, and that the judge failed to properly account for pre-verdict custody.

  • Whether the sentences imposed for perverting the course of justice were excessive, having regard to Judicial Commission statistics and the period of prior custody served.
  • Whether the sentencing judge erred by failing to find "special circumstances" under s 5(2) of the Sentencing Act 1989, which would justify departing from the standard statutory relationship between minimum and additional terms.
  • Whether the sentencing judge failed to properly take into account the period spent in pre-trial custody when structuring the sentences.

Decision

Excessive sentence. The Court of Criminal Appeal rejected the submission that the sentences were excessive. Spigelman CJ noted that Judicial Commission statistics showed 16% of the limited sample of s 319 matters received minimum or fixed terms of 24 months, only three months less than imposed here. Those statistics provided no basis to conclude the sentence was excessive. The Chief Justice described the stalking of the witness as "deliberate and terrifying" and observed that the sentences would, by many standards, be considered lenient rather than harsh.

Special circumstances. The applicant argued that the combination of broken pre-trial custody, absence of prior criminal history, and the family circumstances the judge had already labelled "exceptional circumstances" collectively warranted a finding of special circumstances under s 5(2). The Court accepted that prior custody in broken periods can, in principle, constitute special circumstances (following Close (1992) 65 ACrimR 55). However, it found that none of the three factors, individually or cumulatively, justified departing from the statutory relationship in this case. Critically, the family circumstances had already been expressly taken into account by the judge in reducing both the total and minimum terms, so to treat them again as special circumstances would amount to double-counting.

Pre-trial custody. The Court rejected outright the submission that the judge had inadvertently disturbed the statutory minimum-to-additional-term ratio by not mechanically adding pre-custody time to the minimum term. The judgment recorded at least four separate passages in which his Honour expressly stated he had taken the fourteen-plus months of prior custody into account. That consideration properly informed both the total and minimum terms. The argument that prior custody should be arithmetically added to the minimum term to reveal a hidden error was characterised as devoid of merit.

The Court granted leave to appeal but dismissed the appeal unanimously.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Judicial Commission sentencing statistics can be referenced on appeal to test whether a sentence is manifestly excessive, but a small sample producing figures only marginally lower than the sentence under review will not, without more, establish error.
  • Under s 5(2) of the Sentencing Act 1989, broken periods of pre-trial custody can, in principle, constitute special circumstances justifying departure from the standard minimum-to-additional-term ratio, consistent with Close (1992) 65 ACrimR 55.
  • Where a sentencing judge has already expressly discounted a sentence to reflect family hardship ("exceptional circumstances"), those same facts cannot be re-deployed to establish "special circumstances" for the purpose of further adjusting the minimum term; doing so would give the same factor double weight.
  • No error arises from a failure to arithmetically add pre-verdict custody to the minimum term as imposed; provided the judge expressly and genuinely takes pre-trial custody into account when fixing both the total and minimum terms, the obligation under the Sentencing Act is satisfied.
  • In dismissing the appeal, the Court of Criminal Appeal signalled that considerable leniency already displayed by a sentencing court is itself a reason to withhold further appellate reduction of a minimum term, even where some technical argument might otherwise be available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice; maximum: 14 years penal servitude)
- Firearms Act 1989 (NSW), s 5 (possession of a firearm; maximum: 10 years imprisonment)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances and the statutory minimum-to-additional-term ratio)

Cases:
- Close v R (1992) 65 ACrimR 55
- R v Gray, NSWCCA (unreported, 17 March 1993)