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Court of Criminal Appeal 26 June 2017

Tassis v R

[2017] NSWCCA 143

DrugsFirearms & weapons
CRIMINAL LAW APPEAL SENTENCE NO ERROR FOUND LEAVE TO APPEAL REFUSED

Citation: Tassis v R [2017] NSWCCA 143
Court: Court of Criminal Appeal
Date: 26 June 2017
Judge(s): Hoeben CJ at CL, Bellew J, Fagan J

Background

The applicant pleaded guilty in the District Court to two firearms offences (possessing a prohibited pistol and possessing a pistol, contrary to the Firearms Act 1996 (NSW)) and one drug supply offence (contrary to the Drug Misuse and Trafficking Act 1985 (NSW)). The offending arose from a trip to Brisbane during which the applicant acquired two unauthorised pistols and approximately 14 grams of methylamphetamine, then arranged for them to be couriered back to Sydney concealed in gift-wrapped packaging. Police intercepted the parcel and, on executing a search warrant at the applicant's home, found substantial quantities of drugs and $20,000 in cash.

The applicant was sentenced in December 2015 to a total non-parole period of two years and nine months, with an additional term of one year and three months. The sentencing judge accepted the offending on counts 1 and 2 was below the mid-range of objective seriousness, applied a 25% discount for the guilty pleas, and found special circumstances. The applicant sought leave to appeal against the sentences on counts 1 and 2 only.

  • Whether the sentencing judge erroneously allowed the maximum penalty of 14 years imprisonment to constrain the sentencing discretion for the firearms offences.
  • Whether, as a consequence of that alleged error, inappropriately severe sentences were imposed on counts 1 and 2.

Decision

The Court of Criminal Appeal rejected the single ground of appeal and refused leave. Bellew J, with whom Hoeben CJ at CL and Fagan J agreed, identified several difficulties with the applicant's argument.

First, the applicant's submissions concentrated on the sentencing judge's assumed starting point before the guilty plea discount was applied. Bellew J noted that focusing on a starting point diverts attention from the proper question: whether the sentences actually imposed were inappropriately severe. That question had to be assessed by reference to the ultimate sentences, not an intermediate calculation. The court also observed that arguing from an assumed starting point is generally neither appropriate nor helpful when asserting that a sentence is manifestly excessive, and that there is no material difference between "manifestly excessive" and "inappropriately severe" for this purpose.

Second, the real substance of the applicant's complaint was that insufficient weight had been given to the standard non-parole period (three years at the time of the offending). Bellew J held this reflected a fundamental error in approach. The obligation of the sentencing judge was to apply "instinctive synthesis," weighing all relevant factors together without giving priority to any single legislative guidepost. The submissions effectively sought to elevate the standard non-parole period above the maximum penalty, which the court described as contrary to the required approach. Careful attention must always be paid to maximum penalties, as confirmed by the High Court in Markarian v R. The sentencing judge had properly considered both legislative guideposts, and no error was established.

Orders Made

  • Leave to appeal against sentence is refused.

Key Takeaways

  • No error was established where the sentencing judge took both the maximum penalty and the standard non-parole period into account as part of an instinctive synthesis, without giving priority to either.
  • Challenging a sentence by focusing on an assumed pre-discount starting point is generally an unhelpful approach; the Court of Criminal Appeal confirmed the correct focus is on whether the ultimate sentence imposed was inappropriately severe or manifestly excessive.
  • A submission that insufficient weight was given to the standard non-parole period carries an inherent risk of being characterised as impermissibly elevating that guidepost above others, including the maximum penalty.
  • Under the sentencing framework affirmed in Markarian v R (2005) 228 CLR 357, careful attention must always be paid to maximum penalties; they are a significant legislative indicator of the gravity Parliament attaches to an offence.
  • In dismissing the appeal, the Court confirmed that the standard non-parole period and the maximum penalty are both relevant factors in the sentencing exercise, neither of which can be mechanistically prioritised over the other.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Firearms Act 1996 (NSW), ss 4(1), 4C, 7(1)

Cases:
- Adzioski v R [2013] NSWCCA 69
- Hayek v R [2016] NSWCCA 126
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25