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Court of Criminal Appeal 20 December 2013

Stojanovski v R

[2013] NSWCCA 334

DrugsFirearms & weapons
CRIMINAL LAW APPEAL SENTENCE SEVERITY PLEAS OF GUILTY SUPPLY PROHIBITED DRUGS

Citation: Stojanovski v R [2013] NSWCCA 334
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judges: Hoeben CJ at CL, Simpson J, Johnson J

Background

The applicant pleaded guilty in the District Court at Newcastle to two counts of supplying prohibited drugs (cannabis and methylamphetamine) and one count of possessing a prohibited weapon (a stun gun) without a permit. The drug offences involved operating a commercial supply business from his home over several months in early 2011, using a mobile phone to arrange sales in small quantities. Police executing a search warrant found drugs, drug-related paraphernalia, cash, and the stun gun on the premises.

Maiden DCJ sentenced the applicant to an aggregate term of four years and three months imprisonment, with a non-parole period of two years and nine months. The sentencing judge found special circumstances justifying a departure from the standard statutory ratio between sentence and non-parole period, based on the applicant's rehabilitation progress and re-entry into the workforce.

The applicant sought leave to appeal the severity of all three sentences in the Court of Criminal Appeal, raising five grounds of appeal.

  • Whether the sentencing judge erred in assessing the objective seriousness of the drug supply offences
  • Whether the sentencing judge erred by failing to take into account the quantity of drugs involved in the supply offences
  • Whether the sentencing judge erred by failing to take into account the applicant's remorse as a distinct mitigating factor
  • Whether the individual or aggregate sentences were manifestly excessive

Decision

The Court of Criminal Appeal found no error in the sentencing judge's assessment of objective seriousness. The drug dealing was characterised as sustained and repetitive commercial supply, and the applicant's criminal history, which included two prior drug supply convictions, provided no basis for leniency on that aspect.

On the question of drug quantity, the Court noted that the total quantity of drugs supplied had never been clearly identified on the facts. In those circumstances, the sentencing judge could not be criticised for failing to treat quantity as an aggravating feature, and no error arose.

Regarding remorse, the Court accepted that the sentencing judge had not expressly mentioned the applicant's expressed remorse. However, Simpson J reasoned that remorse operates as a mitigating factor primarily because it is a concomitant of rehabilitation, making future offending less likely. The sentencing judge had addressed rehabilitation in considerable depth, and any independent reference to remorse could not have materially altered the outcome.

On manifest excess, the Court was unpersuaded. The offences were serious by reason of their sustained and commercial character. While the rehabilitation evidence was described as "very favourable," general deterrence remained an important sentencing consideration. The sentences, individually and in aggregate, were not found to be manifestly excessive.

Orders Made

  • Leave to appeal each sentence granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's approach to objective seriousness where the drug supply operation was sustained, repetitive, and plainly commercial in nature.
  • Where the total quantity of drugs supplied cannot be clearly identified on the agreed facts, a sentencing judge cannot be faulted for declining to treat quantity as an aggravating factor.
  • The Court of Criminal Appeal confirmed that remorse, as a statutory mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, is closely connected to rehabilitation; where rehabilitation has been thoroughly addressed, a failure to separately enumerate remorse does not necessarily constitute a sentencing error.
  • Strong rehabilitation evidence does not automatically override the significance of general deterrence, particularly in cases involving commercial drug supply.
  • In dismissing the appeal, the Court affirmed that an aggregate sentence must be assessed in light of both the objective criminality and the offender's personal circumstances, and that the combination of a serious offending history and commercial drug dealing can justify a substantial term even where rehabilitation is genuine.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(3)(i), 44(2) and Pt 4 Div 1A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126