AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 10 August 2018

Jawosh v R

[2018] NSWCCA 162

DrugsFirearms & weapons
CRIME SENTENCE APPEAL PAROLE PERIOD OF 4 YEARS GROUND REJECTED PAROLE PERIOD OF 4 YEARS

Citation: Jawosh v R [2018] NSWCCA 162
Court: Court of Criminal Appeal, New South Wales
Date: 10 August 2018
Judges: Payne JA, R A Hulme J, Button J

Background

The applicant pleaded guilty in the Local Court to a series of drug supply, prohibited weapon possession, and related offences arising from a police search of his home in May 2016. Officers found substantial quantities of opium, methylamphetamine, and cannabis, along with two electronic shock devices (tasers), a slingshot, drug ledgers, electronic scales, and a small sum of cash suspected to be drug proceeds. He was committed to the District Court for sentence on five of the offences, with three further summary offences referred up by certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

The District Court judge imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years. In setting individual indicative sentences, the judge assessed the supply offences as slightly below the mid-range of objective seriousness and the weapon offences toward the lower end of the range.

The applicant sought leave to appeal, arguing that the sentencing judge had wrongly connected his possession of the tasers to his drug dealing, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that possession of the two electronic shock devices was connected to the applicant's drug supply, and whether adequate reasons were given for that finding and its effect on sentencing.
  • Whether the aggregate sentence of 8 years with a 4-year non-parole period was manifestly excessive.

Decision

Ground 1: Connection between tasers and drug supply

The Court of Criminal Appeal rejected this ground. The sentencing judge's finding that possession of the tasers was connected to drug dealing was described as well open on the evidence. The tasers were found alongside drug ledgers and electronic scales, and the applicant chose not to give evidence himself, leaving the only rational inference available to the sentencing judge as the one he drew. The Court found no error in the reasoning or the judge's statement of it.

Ground 2: Manifest excess

The Court upheld this ground. The most significant problems arose with the indicative sentences for the summary offences referred up on certificate. The indicative sentence for possessing 173.2 grams of cannabis was set at the maximum penalty available for that offence, and the sentence for the occupier knowingly allowing premises to be used as drug premises actually exceeded the statutory maximum. These errors were compounded across an aggregate sentence that, taken as a whole, produced an unreasonable outcome given that all the principal offences had been assessed as below the mid-range of seriousness.

On resentencing, the Court maintained the non-parole period of 4 years, agreeing with the Crown that four years in custody appropriately reflected the applicant's overall criminality. The Court also noted that post-sentence disciplinary infractions in custody tended to suggest the applicant's rehabilitation prospects had not improved since sentencing, which bore on how the finding of special circumstances was reflected in the new aggregate term.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 4 July 2017 quashed.
  • Applicant resentenced to an aggregate term of imprisonment of 6 years and 6 months with a non-parole period of 4 years, dating from 27 May 2016, with eligibility for parole from 26 May 2020.

Key Takeaways

  • A sentencing judge's inference that weapons were connected to drug supply was held well open where the applicant did not give evidence and the weapons were found alongside drug ledgers and scales.
  • Indicative sentences for summary offences referred to the District Court by certificate must remain within the statutory maximum for those offences; sentences at or above the maximum will constitute appellable error.
  • Where an aggregate sentence encompasses multiple obviously excessive individual component sentences, the aggregate itself may be manifestly excessive even if the principal offence sentences are not, standing alone, demonstrably wrong.
  • The Court of Criminal Appeal maintained the same non-parole period on resentencing, reflecting that the overall custodial period required was sound even though the head sentence required reduction.
  • Post-sentence disciplinary conduct in custody is a factor the Court may consider when assessing rehabilitation prospects on resentencing, having been placed before the Court by the Crown by affidavit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(c)
- Criminal Procedure Act 1986 (NSW) s 166
- Drug Misuse and Trafficking Act 1985 (NSW) ss 10, 25, 36Y
- Weapons Prohibition Act 1998 (NSW) s 7, Sch 1

Cases
- Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
- Luu v R [2008] NSWCCA 285
- Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170