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Court of Criminal Appeal 11 July 2016

Anargiros v R

[2016] NSWCCA 134

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE POOR HEALTH

Citation: Anargiros v R [2016] NSWCCA 134
Court: Court of Criminal Appeal, NSW
Date: 11 July 2016
Judges: Ward JA; Price J; McCallum J

Background

The applicant pleaded guilty in the Local Court to three serious charges: supplying firearms on three or more occasions, manufacturing prohibited firearms (specifically homemade "pen guns"), and supplying a prohibited drug (ephedrine). All offences occurred between January and April 2013. Police identified the applicant through an undercover operation involving telephone intercepts, surveillance, and an undercover operative.

The applicant was committed to the District Court for sentence, where Bennett SC DCJ imposed an aggregate sentence of 10 years imprisonment, with a non-parole period of 5 years. A 25% discount was applied for the utilitarian value of his guilty pleas.

The applicant suffered from a range of serious medical conditions, including dilated cardiomyopathy, chronic atrial fibrillation, obstructive sleep apnoea, dyslipidaemia, and impaired liver function. These conditions caused significant daily difficulties and had deteriorated during his time in custody.

  • Whether the sentencing judge erred by confining the applicant's poor health to the finding of special circumstances (affecting the non-parole period) rather than also reducing the head sentence.
  • Whether the applicant should be granted leave to appeal where his senior counsel had, at the sentencing hearing, conceded that poor health was relevant only to special circumstances and not to the head sentence.

Decision

Price J (with Ward JA and McCallum J agreeing) refused leave to appeal. The Court found that the applicant was, in substance, attempting to resile from a concession made by his senior counsel before the sentencing judge. The sentencing judge had indicated that poor health would be confined to the non-parole period, and senior counsel did not challenge that approach or argue it would constitute double counting.

The Court reiterated that appeals are not an opportunity to revise or reformulate cases argued below. Arguments that retract or contradict submissions made at sentencing will not be entertained unless a miscarriage of justice arising from the plea and sentence can be demonstrated, citing Zreika v R [2012] NSWCCA 44.

Price J also found the original concession was not inappropriate in the circumstances. Poor health rendering imprisonment more burdensome may establish special circumstances justifying a longer parole period, but it does not automatically mandate a reduced head sentence. The Court noted the risk of double counting if the same matter is used both to reduce the head sentence and to find special circumstances.

Crucially, there was no evidence before the sentencing judge that the applicant's medical conditions would limit his ability to comply with parole conditions. Price J observed that parole conditions could reasonably be expected to be tailored to accommodate his health at the time of release. The Court distinguished Betts v R [2015] NSWCCA 39, where evidence showed serious injuries would affect the offender's period at liberty on parole.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • Poor health rendering imprisonment more burdensome may support a finding of special circumstances, but does not mandate a reduction in the head sentence: R v Sellen (1991) 57 A Crim R 313 applied.
  • A concession made by senior counsel at a sentencing hearing carries significant weight on appeal. The Court of Criminal Appeal will not entertain arguments that seek to resile from such concessions unless a miscarriage of justice is demonstrated.
  • Double counting is a live concern in sentencing: where poor health has been taken into account in calculating the head sentence, courts have warned against relying on it again when finding special circumstances.
  • The absence of evidence that medical conditions will limit compliance with parole conditions is a material factor in determining whether health should affect the head sentence, not merely the non-parole period.
  • In refusing leave, the Court distinguished Betts v R [2015] NSWCCA 39 on its facts, confining that decision to circumstances where evidence established that serious injuries would affect the offender's period of conditional liberty.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Firearms Act 1996 (NSW), ss 50A, 51B, 51BA, 65

Cases:
- Bell v R; Jelisavac v R [2009] NSWCCA 206
- Betts v R [2015] NSWCCA 39
- R v Fidow [2004] NSWCCA 172
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Sellen (1991) 57 A Crim R 313
- Trindall v R [2013] NSWCCA 229
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44