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Court of Criminal Appeal 19 April 2001

R v Rajapaski

[2001] NSWCCA 126

DrugsFirearms & weapons
CROWN APPEAL TWO SETS OF OFFENCES RESPONDENT RESENTENCED

Citation: R v Rajapaski [2001] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 19 April 2001
Judge(s): Priestley JA, Kirby J, Howie J

Background

The respondent pleaded guilty in the District Court to seven counts involving prohibited drug supply and the unlicensed possession of four firearms. The offences were committed in mid-1996 and included an attempt to receive ten kilograms of cannabis resin, the supply of over 440 grams of methyl amphetamine, and the supply of cannabis leaf. When sentenced on the first count, the court also took into account a further 28 matters listed on a Form 1, covering additional drug supply offences, firearms offences, and possession of cash suspected of being the proceeds of drug dealing.

District Court Judge Hosking sentenced the respondent to two years and eight months imprisonment (with a sixteen-month non-parole period) on the first and third drug counts, and to six months imprisonment on each of the remaining drug and firearms counts. The Director of Public Prosecutions appealed, contending that the sentences imposed on the firearms counts were manifestly inadequate.

The respondent had prior convictions including possession of firearms offences from 1993. The sentencing judge found that general deterrence outweighed specific deterrence, given evidence of significant rehabilitation, but the DPP maintained that the firearms sentences failed to reflect the objective seriousness of the offences.

  • Whether the sentences imposed by Judge Hosking on the firearms counts were manifestly inadequate
  • What matters should be taken into account when resentencing, including the double jeopardy principle and the utilitarian value of an early guilty plea
  • Whether special circumstances existed to justify departing from the standard ratio between non-parole period and head sentence under the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal agreed with the DPP that the six-month sentences imposed on the four firearms counts were manifestly inadequate, having regard to the objective seriousness of possessing four unlicensed firearms in the context of a commercial drug trafficking operation. The court emphasised the importance of general deterrence in cases involving firearms offences of this nature.

In resentencing, the court took into account several factors that reduced the sentences below what might otherwise have been imposed at first instance. These included the double jeopardy principle (which reflects the unfairness of imposing on a second occasion the full sentence that should have been imposed originally), the respondent's early indication of a guilty plea (warranting a discount towards the top of the available range), and evidence of rehabilitation during custody.

The court found special circumstances justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999. The reasons included the fact that the appeal was brought by the Crown, the sentences were partly cumulative, and rehabilitation had occurred while the respondent was in custody.

Orders Made

  • Sentences on counts 5 and 6 quashed; respondent resentenced to three years imprisonment commencing 5 February 2001, with a non-parole period of six months expiring 4 August 2001, subject to supervision by the Probation and Parole Service upon release
  • Sentences on counts 4 and 7 quashed; respondent resentenced to two years imprisonment commencing 5 February 2001, with a non-parole period of six months expiring 4 August 2001

Key Takeaways

  • Six-month terms for possessing four unlicensed firearms in the context of a large-scale commercial drug operation were held to be manifestly inadequate, failing to reflect the objective gravity of the conduct or the demands of general deterrence.
  • The double jeopardy principle operates on Crown appeals to moderate the sentence a court imposes on resentencing below what it would have imposed at first instance, particularly where considerable time has elapsed since the original sentencing.
  • An early indication of a guilty plea warrants a meaningful discount; the Court of Criminal Appeal accepted the Crown's concession that the respondent's plea had been indicated at the first available opportunity, justifying a discount towards the top of the range.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established by a combination of factors, including the Crown having brought the appeal, the partly cumulative nature of the sentences, and demonstrated rehabilitation during custody.
  • In dismissing the original sentences on the firearms counts, the Court confirmed that sentences must visibly mark the seriousness of firearms offences for the purposes of general deterrence, even where subjective factors weigh significantly in an offender's favour.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), s 161

Cases
- R v Bavadra [2000] NSWCCA 292
- Pearce v The Queen (1998) 194 CLR 610
- R v Keyte (26 March 1986)
- R v Morgan (1993) 70 A Crim R
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Todd [1982] 2 NSWLR 517