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Court of Criminal Appeal 4 April 2005

Regina v Aslan

[2005] NSWCCA 121

DrugsFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE ONGOING SUPPLY OF DRUGS ONGOING SUPPLY OF PISTOLS

Citation: Regina v Aslan [2005] NSWCCA 121
Court: New South Wales Court of Criminal Appeal
Date: 4 April 2005
Judge(s): Grove J, Hunt AJA, Hall J

Background

The appellant pleaded guilty in the Campbelltown District Court to three serious offences: ongoing supply of a prohibited drug, ongoing sale of firearms, and supply of a large commercial quantity of a prohibited drug. Six further offences were taken into account on a Form 1. The offending was uncovered through an authorised undercover police operation, with officers referred to as "Brad" and "Tony" making a series of controlled purchases between March and May 2002.

The drug supply involved repeated sales of tablets, predominantly methylamphetamine, with the final transaction involving 3,000 tablets weighing approximately 1,020 grams and valued at $45,000. The firearms conduct involved supplying four self-loading pistols on separate occasions, with serial numbers obliterated, two accompanied by ammunition, and one with a silencer. The sentencing judge found that the appellant was operating as a wholesaler within the drug trafficking hierarchy, using most of his profits to fund his own drug addiction.

Sides DCJ applied a 25 percent discount for early guilty pleas and imposed cumulative sentences resulting in an effective total sentence of 11 years and six months, with a non-parole period of seven years. The appellant sought leave to appeal on the grounds that the total sentence was unduly harsh and severe.

  • Whether the total effective sentence of 11 years and six months was outside the range of a sound exercise of sentencing discretion
  • Whether the sentencing judge erred in treating the supply of firearms as an offence committed "without regard for public safety" under section 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the accumulation of the firearms sentence upon the drug sentences produced a disproportionately severe outcome
  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including the absence of prior convictions, age, drug addiction, family background, and personal hardship

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. On the aggravating factor of disregard for public safety, the Court distinguished between "specifically placing the public at risk" and acting "without regard for public safety." It held that supplying lethal weapons plainly falls within the statutory aggravating factor, regardless of the fact that the buyer was an undercover operative who would not actually deploy the weapons.

On the question of accumulation, the Court noted that the firearms sentence was directed to commence one year before the expiry of the non-parole period for the third count (the large commercial quantity drug offence, which carries a maximum of life imprisonment). That arrangement reduced the effective severity of the overall sentence structure and addressed any concern that accumulation had produced an unjust result.

The Court also found no error in the sentencing judge's treatment of the prior recognizance under section 10 of the Crimes (Sentencing Procedure) Act 1999 as an aggravating matter. While acknowledging the appellant's personal circumstances, including his lack of prior convictions, his age, his drug addiction, the violent breakdown of his marriage, and the impact of incarceration on his young son, the Court concluded that the seriousness of three discrete and substantial offences warranted a lengthy sentence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Supplying a lethal weapon satisfies the aggravating factor of acting "without regard for public safety" under section 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999, even where the weapon is sold to an undercover operative and never deployed.
  • The concept of "without regard for public safety" is broader than "specifically placing the public at risk," and the distinction is relevant to the application of the statutory aggravating factors.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that cumulative sentences across separate categories of serious offending (drugs and firearms) do not necessarily produce an excessive result, particularly where non-parole periods are structured to overlap.
  • Substantial mitigating factors, including no prior convictions and difficult personal circumstances, will not necessarily displace a lengthy sentence where multiple serious offences, each carrying high maximum penalties, are before the court.
  • A 25 percent sentencing discount for early guilty pleas made at the first available opportunity remains consistent with the approach confirmed in R v Way (2004) 60 NSWLR 168.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 10 and 21A(2)(i)
- Firearms Act (NSW), section 51B

Cases:
- R v Way (2004) 60 NSWLR 168