Citation: Krivosic v R [2017] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 14 July 2017
Judges: Basten JA; Harrison J; R A Hulme J
Background
The applicant was arrested after a police pursuit on the Hume Highway in August 2015. When police searched his vehicle, they found over 19 grams of methylamphetamine at high purity, a loaded prohibited pistol concealed under the centre console, and $440 in cash. He was also a disqualified driver at the time.
The applicant pleaded guilty in the Local Court to the drug supply and firearms possession offences and was committed to the District Court for sentencing. He was sentenced on 10 April 2017 by Culver DCJ, who imposed an aggregate effective sentence of four years and three months with a non-parole period of two years and nine months. The sentencing judge applied a 50 per cent discount for the early guilty pleas.
The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence for supplying a prohibited drug and, separately, the sentence for possessing an unauthorised pistol were each manifestly excessive.
Legal Issues
- Whether the sentence for supply of a prohibited drug was manifestly excessive.
- Whether the sentence for unauthorised possession of a prohibited pistol was manifestly excessive, in particular whether the sentencing judge had erred by treating a finding of "mid-range" objective seriousness as a basis for setting the starting point at half the maximum penalty.
- Whether the finding of special circumstances had been applied unfavourably to the applicant, effectively extending the total sentence rather than extending the supervision period on parole.
- What aggregate sentence should be substituted on resentencing.
Decision
Drug supply offence: The Court found the sentence for drug supply was not manifestly excessive. The applicant offered only superficial comparisons with other cases, and sentencing statistics were of no real assistance. Because the finding of objective seriousness was not challenged, the appeal on this ground failed.
Firearms offence: The Court found the sentence for possessing an unauthorised pistol was manifestly excessive. The sentencing judge had found the offence to be "at the mid-range level" of objective seriousness, but had then set a starting point equivalent to exactly half the maximum penalty of 14 years. Basten JA emphasised that a finding of mid-range seriousness does not mean the appropriate sentence is halfway between zero and the maximum. The sentencing judge had also not adequately reflected the significant mitigating subjective factors, including the 50 per cent discount for the early guilty plea.
A further problem concerned the treatment of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Basten JA observed that there was a strong indication the finding of special circumstances had been used to extend the total sentence rather than to reduce the non-parole period below the statutory default. That use of special circumstances was impermissible. R A Hulme J, with whom Harrison J agreed, also noted that imposing individual sentences with detailed accumulation orders opens the door to technical arguments that do not advance the real question of whether the overall outcome is just, and indicated a preference for aggregate sentencing.
On resentencing, the Court concluded that an aggregate sentence of four years with a non-parole period of two years and six months, commencing 31 August 2015, was appropriate and adequately reflected the totality of the offending.
Orders Made
- Leave to appeal against sentence granted; appeal allowed.
- Sentences imposed in the District Court for supply of a prohibited drug, unauthorised possession of a prohibited pistol, driving whilst disqualified, and police pursuit quashed.
- In substitution, an aggregate term of imprisonment of four years imposed, with a non-parole period of two years and six months dating from 31 August 2015, with eligibility for release on parole on 27 February 2018.
Key Takeaways
- A finding that an offence is of "mid-range" objective seriousness does not justify a starting point at half the maximum penalty. Mid-range seriousness is a description of the offending, not a mechanical formula that maps directly onto the sentencing range.
- Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances must operate to reduce the non-parole period relative to the total sentence, not to extend the total sentence beyond what would otherwise be imposed.
- The standard non-parole period remains a significant guidepost and mandatory consideration, but its proper relationship to the total proposed sentence must be worked through carefully, not treated as a standalone figure.
- Where a statutory discount for a guilty plea is applied, the sentencing court should generally make explicit the sentence that would have been imposed without the discount, so the calculation is transparent and open to review.
- Superficial comparisons with other cases and reliance on sentencing statistics alone are insufficient to establish manifest excess; the appellate court confirmed that such materials are of limited assistance without a properly grounded challenge to the objective seriousness finding.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 22, 23, 44, 54A, 54B
- Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 (NSW)
- Firearms Act 1996 (NSW), s 4
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Hampton (1998) 44 NSWLR 729
- Ballard v R [2011] NSWCCA 193
- Brown v R [2013] NSWCCA 44
- Edwards v R [2017] NSWCCA 160
- Mundine v R [2017] NSWCCA 97
- Price v R [2016] NSWCCA 29
- Hitchcock v R [2016] NSWCCA 226
- Thalari v R (2009) 75 NSWLR 307