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11
Court of Criminal Appeal 1 December 2010

Prculovski v R

[2010] NSWCCA 274

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE ERROR NOT ESTABLISHED LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Prculovski v R [2010] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 1 December 2010
Judge(s): McClellan CJ at CL; Schmidt J; Howie AJ

Background

The appellant pleaded guilty in the District Court to a cluster of drug supply and firearms offences. The most serious charge was ongoing supply of methylamphetamine under s 25A(1) of the Drug Misuse and Trafficking Act 1985, arising from five separate sales of methamphetamine to police operatives over a period in mid-2008. Two further supply charges under s 25(1) of the same Act, involving larger quantities (roughly 26 and 27 grams respectively, each sold for $7,000), were also among the principal offences.

The sentencing judge in the District Court imposed a total sentence of five years and three months, with a non-parole period of three years. Eleven additional offences, including weapons and drug possession charges discovered during a search of the appellant's home, were taken into account on a Form 1 (a mechanism under NSW sentencing law allowing related charges to be considered without imposing separate penalties).

The appellant challenged the sentence in the Court of Criminal Appeal on the ground that the sentencing judge wrongly identified his offending as aggravated by being part of "planned and organised criminal activity" and committed "for financial gain," contrary to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred by applying the aggravating factors of "planned and organised criminal activity" and "financial gain" under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 to the drug supply offences.
  • Whether, in light of any such error, a different sentence was warranted as a matter of law.

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error warranting intervention. Schmidt J, with whom McClellan CJ at CL agreed, found that it was unclear from the sentencing remarks precisely which offences the judge had in mind when applying the aggravating factors. However, the Court concluded that even if the remarks created some ambiguity, the overall sentence imposed did not reflect those factors being treated as seriously aggravating.

On the "financial gain" question, the Court noted that financial gain is an element of the s 25A(1) offence itself, which raises a potential problem: an element of an offence generally cannot also be used as an aggravating factor when sentencing for that offence. However, the Court held that where the financial gain is materially greater than what would be expected at the lowest level of this type of offending, it remains open to a sentencing court to treat that elevated financial return as a matter of aggravation. The $8,800 received for the ongoing supply, while not a large sum, exceeded what street-level dealing would typically generate.

On the "planning" factor, Howie AJ observed that the appellant's conduct was at least one step above the lowest form of the offending. The appellant was filling orders placed with him, sourcing the drugs from a supplier further up the chain, and the two larger supply offences demonstrated a capacity and willingness to operate at a higher level. It was therefore open to a court to regard the degree of planning involved as a genuine aggravating feature.

Howie AJ added remarks expressing the view that the overall sentences were "on the inadequate" side, criticising the concurrent structuring of the two supply sentences and the leniency of the nine-month accumulation for the firearm offence. These observations did not, however, change the outcome, as the Court was not prepared to find that a different sentence was warranted as a matter of law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, financial gain and planning are not automatically excluded as aggravating factors merely because financial reward is an element of the s 25A(1) ongoing supply offence. Where those features exceed what would be expected at the lowest level of such offending, a sentencing court may treat them as aggravating.

  • No error was established in applying the aggravating factors where, even if the sentencing judge's remarks were ambiguous as to which offences they addressed, the sentence itself did not demonstrate those factors were treated as seriously aggravating.

  • The Court of Criminal Appeal confirmed that the quantity of drugs supplied does not definitively determine the seriousness of a s 25A offence, but it remains a potentially significant consideration.

  • Howie AJ's separate remarks signal that concurrent structuring of multiple drug supply sentences, and minimal accumulation for associated firearms offences, may attract appellate scrutiny as insufficiently reflecting objective seriousness, even where no formal error is identified.

  • A sentence that a member of the appellate bench privately regards as inadequate will not be increased on a Crown appeal unless the specific legal criteria for intervention are met. The Court here declined to interfere despite Howie AJ's reservations.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2), s 32
- Criminal Appeal Act 1912 (NSW)
- Firearms Act 1996 (NSW), s 62(1)(b)

Cases:
- Bowden v The Queen [2009] NSWCCA 45
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
- R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152
- R v Cheikh [2004] NSWCCA 448
- R v Henry & Others [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
- R v Wilhelm [2010] NSWSC 378
- Thorne v The Queen [2007] NSWCCA