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Court of Criminal Appeal 23 June 2010

Hristovksi v R

[2010] NSWCCA 129

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE SUPPLY COMMERCIAL QUANTITY OF MDMA POSSESSION OF PISTOL STANDARD NON PAROLE PERIOD OFFENCES

Citation: Hristovksi v R [2010] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 23 June 2010
Judge(s): McClellan CJ at CL, Grove J, Johnson J

Background

The appellant pleaded guilty in the Wollongong District Court to three drug supply offences under the Drug Misuse and Trafficking Act 1985: supplying a commercial quantity of MDMA, supplying a large commercial quantity of MDMA, and supplying a large commercial quantity of amphetamine. He also pleaded guilty to unauthorised possession of a loaded pistol. The offences arose from an undercover police operation in early 2008 that intercepted telephone communications and recorded the appellant negotiating to supply ecstasy in quantities of up to 20,000 pills.

Judge Conlon SC sentenced the appellant to a total effective sentence comprising a non-parole period of 10 years from 25 January 2008 and a balance of term of four years. All sentences were imposed to run concurrently.

The appellant sought leave to appeal, arguing that the sentencing judge had misjudged the objective seriousness of the offences and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in the assessment of the objective seriousness of the drug supply offences
  • Whether the sentences were manifestly excessive, having regard to comparable cases
  • Whether the fact that the appellant possessed a loaded pistol at the time of the supply offences was relevant to the objective seriousness of those offences
  • Whether the Court of Criminal Appeal had power to correct two procedural sentencing errors that had not been raised as grounds of appeal: (1) the imposition of fixed-term sentences for standard non-parole period offences, and (2) the use of Form 1 offences in relation to two counts rather than one

Decision

The Court dismissed the appeal on all grounds. Johnson J (with whom McClellan CJ at CL and Grove J agreed) found no error in the sentencing judge's assessment of objective seriousness. The offending involved large-scale commercial drug supply, negotiated quantities of up to 20,000 pills, and an ongoing supply operation. The Court confirmed that the presence of a loaded pistol during a drug supply offence is a relevant consideration in assessing objective seriousness, even where the firearm offence is separately charged and sentenced.

The Court rejected the argument that the sentences were manifestly excessive. Applying the standard of review from R v Way, the Court compared the sentences against a range of analogous decisions and found the total sentence was within an appropriate range for offending of this nature and magnitude.

Two errors in the sentences were identified by the Court, though neither had been raised as a ground of appeal. First, fixed-term sentences were imposed for Counts 1 and 4, both standard non-parole period offences, in breach of s 45(1) of the Crimes (Sentencing Procedure) Act 1999, which requires a non-parole period to be set for such offences. Second, the Form 1 offences were taken into account on two counts rather than one, contrary to ss 31 to 33 of that Act. Because no ground of appeal had been upheld, s 6(3) and s 7(1A) of the Criminal Appeal Act 1912 provided no basis for the Court to intervene. The Court noted that the erroneous sentences were not invalid, and that the sentencing court retained the capacity to correct the error under s 43 of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The possession of a loaded firearm during a drug supply offence is relevant to the objective seriousness of the supply offences, not just to the separate firearm charge.
  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, fixed-term sentences cannot lawfully be imposed for standard non-parole period offences; a non-parole period must be set.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed it has no power to intervene to correct a sentencing error that was not raised as a ground of appeal, unless s 6(3) or s 7(1A) of the Criminal Appeal Act 1912 applies, neither of which applied here where no sentence was being quashed or varied.
  • A sentence imposed in breach of s 45(1) is erroneous but not invalid, and may be corrected by the original sentencing court under s 43 of the Crimes (Sentencing Procedure) Act 1999.
  • Form 1 offences must be taken into account in passing sentence for one offence only; taking them into account across multiple counts is procedurally irregular.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 31–33, 43, 44, 45(1)
- Criminal Appeal Act 1912 (NSW), ss 6(3), 7(1A)

Cases:
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Forbes v R [2009] NSWCCA 292
- Ali v R [2010] NSWCCA 35
- Dunn v R [2010] NSWCCA 128
- R v McEvoy [2010] NSWCCA 110
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Aguirre v R [2010] NSWCCA 115
- Leddin v R [2008] NSWCCA 242
- SGJ v R [2008] NSWCCA 258
- R v Dunn [2004] NSWCCA 346
- R v Rice [2004] NSWCCA 384