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Court of Criminal Appeal 19 June 2013

Zarakas v R

[2013] NSWCCA 144

Firearms & weapons
CRIMINAL LAW OFFENDER APPEAL DISMISSED

Citation: Zarakas v R [2013] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 19 June 2013
Judges: Latham J, Button J, Grove AJ

Background

The applicant was sentenced in the District Court at Wollongong in November 2010 for a single offence of unlawfully selling three or more firearms to unauthorised purchasers over a 12-month period, contrary to s 51B(1) of the Firearms Act 1996. The maximum penalty for that offence was 20 years' imprisonment, with a standard non-parole period of 10 years. The sales involved 13 separate transactions, including two light machine guns and pistols fitted with silencers, all conducted for profit with an undercover operative.

The sentencing judge found the applicant occupied a middle position in a three-person criminal hierarchy operating in the Wollongong area. A Form 1 document attached a further 39 offences to be taken into account. The judge imposed a head sentence of nine years' imprisonment with a non-parole period of five years and six months, having found special circumstances. A co-offender, Mr Kafizas, was sentenced on the same day to seven years and six months with a non-parole period of four years and six months.

The applicant sought leave to appeal out of time, raising two grounds: first, that the sentencing process was infected by the approach condemned in Muldrock v The Queen, and second, that the sentence demonstrated an unjustifiable disparity when compared with the sentence imposed on Mr Kafizas. The Crown did not oppose leave to appeal out of time being granted.

  • Whether the sentencing judge's approach to the standard non-parole period offended the principles in Muldrock v The Queen (2011) 244 CLR 120 by adopting an impermissible two-stage method rather than instinctive synthesis
  • Whether the sentence imposed on the applicant demonstrated an erroneous and unjustifiable disparity compared with the sentence imposed on the co-offender Mr Kafizas

Decision

Ground One: Muldrock error

Button J (with whom Latham J and Grove AJ agreed) acknowledged that the sentence predated the High Court's decision in Muldrock, and that a two-stage approach to sentencing involving the standard non-parole period would constitute error. However, the Court found that the remarks on sentence, read as a whole, did not reveal impermissible two-stage reasoning. The sentencing judge's process was consistent with instinctive synthesis, and no Muldrock error was established.

Ground Two: Co-offender disparity

The Court identified five material distinctions between the applicant and Mr Kafizas that justified the differential in their sentences. The applicant's offence involved 13 firearms sales compared with 12 for Mr Kafizas; the applicant's Form 1 contained 39 offences compared with 28; the applicant held a higher position in the criminal hierarchy; the applicant had a prior criminal record including a prohibited weapons conviction, whereas Mr Kafizas had none; and Mr Kafizas was an older man for whom the sentencing judge found extended custody would be a greater burden.

The Court held these distinctions amply justified the difference in outcomes across the starting points, head sentences, and non-parole periods. The applicant could not maintain a justifiable sense of grievance when comparing his sentence with that of Mr Kafizas. Both grounds of appeal were rejected.

Orders Made

  • Leave to appeal out of time granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judgment that predates Muldrock v The Queen is not automatically infected by error; the Court of Criminal Appeal will read the remarks on sentence as a whole to determine whether impermissible two-stage reasoning actually occurred.
  • No Muldrock error was established where the sentencing judge's remarks, considered holistically, were consistent with instinctive synthesis rather than mechanical two-stage application of the standard non-parole period.
  • A disparity ground fails where identifiable and material differences between co-offenders, including role in the criminal enterprise, criminal history, volume of offending, and personal circumstances, provide adequate justification for differential sentences.
  • Under s 51B(1) of the Firearms Act 1996, the Court of Criminal Appeal reaffirmed the profound objective gravity of supplying semi- or fully automatic firearms for profit, referencing its earlier observations in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36.
  • In dismissing both grounds, the Court confirmed that a higher position in the criminal hierarchy, a greater volume of offences on the indictment and Form 1, and a prior weapons-related conviction are each factors capable of supporting a materially heavier sentence than that imposed on a co-offender.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), s 51B(1)
- Criminal Procedure Act 1986 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Atchison v R [2012] NSWCCA 82
- Dionys v R [2011] NSWCCA 272
- R v Ehrlich [2012] NSWCCA 38
- Stewart v R [2012] NSWCCA 183