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Court of Criminal Appeal 28 November 2018

Frlanov v R

[2018] NSWCCA 267

DrugsFirearms & weapons
CRIME SENTENCE APPEAL PAROLE PERIOD LENGTHY CRIMINAL RECORD SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Frlanov v R [2018] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 28 November 2018
Judge(s): Macfarlan JA, Rothman J, R A Hulme J (judgment delivered by R A Hulme J)

Background

The appellant was stopped at a random breath test in western Sydney in June 2017. Police found a working taser in a belt pouch and 10.4 grams of methylamphetamine in his jacket, together with cash and mobile phones containing drug supply text messages. He pleaded guilty in the District Court to supply of a prohibited drug and possession of a prohibited weapon without a permit.

Judge Williams SC imposed an aggregate sentence of 20 months' imprisonment with a non-parole period of 11 months, commencing 21 February 2018. The judge assessed the individual sentences as 15 months for the drug supply offence and 12 months for the prohibited weapon offence, and applied a 25 per cent discount for guilty pleas across both charges.

The appellant, who appeared without legal representation, sought leave to appeal on the grounds that the sentence was excessive. He had an extensive criminal history dating to 1991, a diagnosis of schizophrenia and substance use disorder, a long history of heroin addiction, and a physical disability arising from a 2010 knife attack.

  • Whether the sentencing judge erred by failing to take into account that the appellant had been subject to onerous daily reporting bail conditions for approximately five and a half months before sentencing.
  • Whether the judge erroneously treated the appellant's prior criminal record as an aggravating factor, given a 27-year gap since his first drug charge.
  • Whether the judge properly applied a 25 per cent discount for the appellant's guilty plea to the drug supply charge, notwithstanding that he had earlier withdrawn and then reinstated that plea.
  • Whether the aggregate sentence of 20 months was manifestly excessive.

Decision

Bail conditions: R A Hulme J confirmed that a sentencing judge may take onerous bail conditions into account but is not obliged to do so. The discretion is fact-specific. No error arose from the judge's failure to make an explicit reduction for the reporting conditions in this case.

Criminal record: The Court was not satisfied that the judge had treated the prior record as an aggravating factor in the manner the appellant alleged. The judge's reference to the record did not, on a fair reading of the sentencing remarks, constitute impermissible double-counting or misapplication of the aggravating factors provision under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.

Guilty plea discount: The Court found no merit in this ground. The judge had the option of applying a less favourable discount, given the appellant's withdrawal and later reinstatement of the plea after the Crown withdrew a related summary charge. The decision to apply a full 25 per cent discount was, if anything, generous to the appellant.

Manifest excess: The Court rejected the contention that a shorter sentence of eight or nine months would have been adequate. Although neither offence was at the most serious end of its range, both were dealt with on indictment in the District Court and carried maximum penalties of 14 and 15 years' imprisonment respectively. The individual sentences reflected the relative seriousness of each offence and appropriately took account of the appellant's personal circumstances. Nothing about the aggregate term was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • A sentencing judge retains a discretion, not an obligation, to reduce a sentence to account for onerous bail conditions such as daily reporting requirements. Failure to do so expressly does not constitute legal error.
  • No error was established in the judge's treatment of the appellant's prior convictions. A reference to criminal history at sentencing does not automatically amount to treating it as an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.
  • Where an accused withdraws a guilty plea and later re-enters it after obtaining a tactical advantage, a sentencing judge may reduce the utilitarian discount below 25 per cent. Applying the full discount in such circumstances is a matter of favourable judicial discretion, not entitlement.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal emphasised that offences dealt with on indictment in the District Court, even where not at the most serious end of their range, carry significant maximum penalties that must inform the sentencing exercise.
  • Psychiatric diagnoses and substance use disorders are relevant to sentencing, particularly where a psychiatrist links those conditions causally to the offending, but their presence does not necessarily render an otherwise proportionate sentence excessive.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Hoskins v R [2016] NSWCCA 157
- R v Webb [2004] NSWCCA 330; 149 A Crim R 167