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Court of Criminal Appeal 30 November 2017

Ristovski v R

[2017] NSWCCA 285

Drugs
SENTENCE APPEAL EX TEMPORE JUDGMENT BY SENTENCING JUDGE PAROLE PERIOD OF 1 YEAR)

Citation: Ristovski v R [2017] NSWCCA 285
Court: Court of Criminal Appeal, New South Wales
Date: 30 November 2017
Judges: Hoeben CJ at CL (principal judgment); Davies J and Adamson J (agreeing)

Background

The applicant pleaded guilty in the District Court to two counts of deemed supply: 9.18 grams of heroin and 13.94 grams of methylamphetamine, each carrying a maximum penalty of 15 years imprisonment. He also had taken into account on a Form 1 (a document that allows additional, uncharged offences to be considered at sentencing without separate conviction) an offence of knowingly dealing with the proceeds of crime, being $41,200 in cash. The drugs and money were found at the applicant's family home during a police search.

The applicant was seriously ill with IgA nephropathy, a kidney disease requiring daily dialysis, and was on a lengthy waiting list for a kidney transplant. The sentencing judge accepted that the applicant had turned to drug supply to fund a possible kidney transplant in Croatia. The District Court imposed an aggregate head sentence of 2 years and 3 months with a non-parole period of 1 year, finding special circumstances because of the applicant's ill-health and reducing the non-parole period accordingly to 43 per cent of the head sentence.

The applicant sought leave to appeal, arguing on four grounds that the sentence was infected by legal error and was manifestly excessive.

  • Whether the sentencing judge applied the wrong legal test by stating he was giving effect to "clear authorities that require custodial penalties for those who supply drugs," without separately considering whether the applicant's medical condition amounted to "truly exceptional circumstances" warranting a non-custodial sentence.
  • Whether the sentencing judge wrongly treated the applicant's prior criminal record as an aggravating factor, given the convictions were approximately 20 years old.
  • Whether the sentencing judge erred in treating the presence of drugs and money in the applicant's family home (where his wife and children lived) as an aggravating factor.
  • Whether the aggregate sentence was manifestly excessive in light of the applicant's subjective circumstances, particularly his serious medical condition.

Decision

Ground 1: Custodial penalty and the medical condition
The Court noted that recent decisions had cast doubt on a longstanding principle from R v Clarke that drug traffickers must receive full-time custody almost as a matter of course. However, the Court found no error in the sentencing judge's approach. His Honour had expressly and thoroughly considered the applicant's medical condition, accepted it as a genuine mitigating factor, and concluded that it did not warrant departing from a custodial sentence. The treatment of the medical evidence was appropriate, and the sentencing judge's reasoning did not disclose a misapplication of principle.

Ground 2: Prior criminal record
The applicant's previous drug supply convictions dated from approximately 20 years before the present offending, followed by a lengthy crime-free period. The Court held that the sentencing judge was entitled to note these prior convictions, but they disentitled the applicant to leniency rather than operating as a positively aggravating feature. No error was identified in that approach.

Ground 3: Drugs found in the family home
The sentencing judge observed that keeping large quantities of drugs and cash in a family home created a real risk of harm to children in the premises, because others in the community could learn of a drug supplier's assets and commit crimes to steal them. The Court found that this was a legitimate sentencing consideration. It was open to the sentencing judge to treat the location of the offending, and the consequent risk to the applicant's family, as a relevant factor.

Ground 4: Manifest excess
Applying the principles in Markarian v The Queen and Robertson v R, the Court found the sentence was not unreasonable or plainly unjust. Relevant considerations included the 15-year maximum for each offence, the serious Form 1 matter involving $41,200 in proceeds of crime, the late guilty plea receiving only a 10 per cent discount, the applicant's prior similar convictions, and the generous special circumstances adjustment that reduced the non-parole period to 43 per cent of the head sentence. The subjective case, beyond the medical condition, was not particularly strong.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A serious medical condition requiring daily treatment can constitute a meaningful mitigating factor at sentencing and may justify a finding of special circumstances to reduce the non-parole period, but it does not automatically warrant a non-custodial sentence for serious drug supply offences.
  • Prior convictions that are substantially old do not necessarily operate as a positive aggravating factor; however, the Court of Criminal Appeal confirmed they can still disentitle an offender to leniency, particularly where the earlier and current offending is of a similar nature.
  • Keeping drugs and cash in a family residence can properly be taken into account as a sentencing consideration, on the basis that it exposes family members, including children, to a real risk of harm from those seeking to steal a drug supplier's assets.
  • In dismissing the manifest excess ground, the Court reaffirmed that intervention is only warranted where the sentence is so far outside the available range that an error of principle must be inferred, not merely because the appellate court might have exercised the discretion differently.
  • The instinctive synthesis approach to sentencing, endorsed in Markarian v The Queen, permits a sentencing judge to increase a sentence on one count to reflect Form 1 matters without imposing a separate penalty for those additional offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193B(2) (knowingly deal with proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(ea)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (deemed supply)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Gore v R (2010) 208 A Crim R 353
- Kay v R; Ellis v R [2017] NSWCCA 218
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Obeid v R [2017] NSWCCA 221
- Qutami v R [2001] NSWCCA 353; 127 A Crim R 369
- R v Clarke (unreported, NSWCCA, 15 March 1990)
- Robertson v R [2017] NSWCCA 205
- Zreika v R [2012] NSWCCA 44