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Court of Criminal Appeal 19 February 2018

Stavropoulos v R

[2018] NSWCCA 12

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL NEED TO RE SENTENCE NO LESSER SENTENCE WARRANTED IN LAW APPEAL DISMISSED.

Citation: Stavropoulos v R [2018] NSWCCA 12
Court: Court of Criminal Appeal, New South Wales
Date: 19 February 2018
Judges: Hoeben CJ at CL (with Price J and Fullerton J agreeing)

Background

The appellant pleaded guilty to supplying a prohibited drug, two counts of unauthorised possession of a pistol, and possession of a prohibited weapon. Four additional offences were taken into account on a Form 1, and three further minor offences were dealt with under s 166 of the Criminal Procedure Act 1986 (NSW).

The offending arose from a police search of the appellant and his vehicle, followed by a search of his home. Officers found approximately 43 grams of methylamphetamine, two imitation pistols, a further imitation firearm, knuckle-dusters, an extendable baton, a large quantity of cannabis, fireworks, and a small amount of amphetamine. The appellant was a first-time offender who had become addicted to methamphetamine at the age of 45.

Judge Berman SC sentenced the appellant in the District Court on 20 April 2017 to an aggregate term of three years' imprisonment with a non-parole period of 18 months. The appellant sought leave to appeal, arguing the sentencing judge erred in his approach to intensive correction orders and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by applying the so-called "Clark principle" in a way that wrongly assumed an intensive correction order was unavailable unless exceptional circumstances existed.
  • Whether the aggregate sentence of three years' imprisonment with an 18-month non-parole period was manifestly excessive.

Decision

The Court of Criminal Appeal found that the sentencing judge had indeed erred in his application of the Clark principle. The Clark principle (from R v Peter Michael Clark [1990]) relates to the circumstances in which a sentencing court may impose a non-custodial sentence where the offender's prospects of rehabilitation are strong. The sentencing judge's approach improperly raised a threshold requirement of "exceptional circumstances" before an intensive correction order could be considered. This constituted an error in the exercise of sentencing discretion, requiring the Court to re-sentence.

Notwithstanding that error, Hoeben CJ at CL concluded on re-sentencing that no penalty other than a custodial sentence was appropriate. The Court took into account the serious nature of the drug supply offending, the business-like manner of the supply evidenced by plastic bags and digital scales, and the weapons offences for which the appellant offered no satisfactory explanation. The Court also noted the appellant's failure to remain drug-free during the adjournment period from October 2016 to April 2017, which rendered his rehabilitation prospects uncertain.

The Court acknowledged the appellant's relatively strong subjective case: he was a first offender, had pleaded guilty at the earliest opportunity, and had not commenced drug supply until after becoming addicted at 45. However, the principles of general deterrence, and to a lesser extent personal deterrence, weighed heavily. The Court was not satisfied that a lesser sentence than that imposed at first instance was warranted in law.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that applying the Clark principle in a way that requires "exceptional circumstances" before an intensive correction order can be considered constitutes a legal error in sentencing, sufficient to enliven the re-sentencing jurisdiction.
  • Establishing an error in the sentencing approach does not automatically produce a more favourable outcome for an appellant. On re-sentence, the Court assessed all relevant factors afresh and reached the same result.
  • Where drug supply is conducted in a business-like manner, evidenced by items such as scales and resealable bags, a sentencing court may treat it as trafficking to a substantial degree even in the absence of proof that money changed hands.
  • Failure to remain drug-free during an adjournment period granted specifically to allow rehabilitation is a factor that weighs against an offender's prospects of rehabilitation and bears on the principle of community protection.
  • A strong subjective case, including a guilty plea at the earliest opportunity and prior good character, does not necessarily displace the primacy of general deterrence when the offending is serious and involves multiple weapon and drug supply charges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93FA(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 11
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Parente v R [2017] NSWCCA 284
- Robertson v R [2017] NSWCCA 205