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Court of Criminal Appeal 11 October 2019

Taha v R

[2019] NSWCCA 240

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE RESENTENCE

Citation: Taha v R [2019] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 11 October 2019
Judges: Payne JA, Button J, Lonergan J

Background

The appellant was arrested in the early hours of 30 April 2017 in a Parramatta motel car park. Police searched him and found approximately 100 grams of methylamphetamine (ice), $8,200 in cash, a fentanyl patch, and a loaded .25 calibre pistol. He was in his late thirties, had a longstanding drug addiction, and had originally acquired the pistol for protection after his wife received a threat connected to a murder trial in which she had been a witness.

The appellant pleaded guilty to three principal counts: possessing a loaded firearm in a public place (s 93G(1)(a)(i) of the Crimes Act 1900 (NSW)), supplying a prohibited drug (s 25 of the Drug Misuse and Trafficking Act 1985 (NSW)), and possessing an unauthorised prohibited firearm (s 7(1) of the Firearms Act 1996 (NSW)). Several additional charges were taken into account on two Form 1 schedules. The District Court at Parramatta imposed an aggregate head sentence of nine years and six months.

On appeal, the appellant argued that the sentencing judge had made errors in assessing the objective gravity of the firearm and drug offences, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the culpability and objective gravity of the two firearm offences, which both related to the same pistol
  • Whether the sentencing judge erred in assessing the objective gravity of the drug supply offence
  • Whether the imposition of identical wholly concurrent indicative sentences for the two firearm offences amounted to double punishment contrary to the principle in Pearce v The Queen
  • Whether the aggregate head sentence was manifestly excessive and warranted resentencing

Decision

The Court upheld ground 3 of the appeal, finding that the aggregate head sentence was manifestly excessive. All three judges agreed on this outcome, and because resentencing was required as a result, the Court did not separately determine grounds 1 and 2, noting there was significant overlap between those grounds and the matters addressed under ground 3.

Button J examined the structure of the two firearm offences closely. Both counts related to the same pistol on the same occasion: one captured possession of a loaded firearm in a public place, the other captured possession of an unauthorised prohibited firearm (a semi-automatic pistol). The imposition of identical indicative head sentences of six years, run wholly concurrently, was found to risk double punishment for the same conduct rather than properly distinguishing what each offence targeted. Button J reasoned that the first offence should reflect the danger of carrying a loaded firearm in public, while the second should reflect the additional criminality in the firearm being a prohibited weapon.

On the drug offence, Button J found the indicative sentence imposed at first instance was excessive having regard to the quantity of ice involved and the concession that the majority was for the appellant's own use, with only a proportion intended for supply. The sentencing court's approach to the drug offence's objective gravity required correction.

Resentencing produced an aggregate head sentence of seven years and six months, with a non-parole period of four years and ten months. Button J applied differentiated indicative sentences for the two firearm counts to properly reflect the distinct criminality of each, adopted a lower starting point for the drug offence, and allowed for a greater degree of implicit cumulation to arrive at the reduced aggregate.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The aggregate sentence imposed by Judge Colefax SC on 16 March 2018 quashed
  • Aggregate head sentence of imprisonment for seven years and six months imposed, commencing 30 April 2017 and expiring 29 October 2024
  • Aggregate non-parole period of four years and ten months, expiring 28 February 2022
  • First eligible date for release to parole: 28 February 2022

Key Takeaways

  • Where two separate firearm offences relate to the same weapon and arise from a single transaction, the sentencing court must structure their indicative sentences to reflect what is distinct and additional about each offence, rather than imposing identical concurrent terms that effectively punish the same conduct twice.
  • The principle against double punishment, confirmed in Pearce v The Queen (1998) 194 CLR 610, applies to the construction of indicative sentences within an aggregate sentence framework, not only to formally cumulative terms.
  • A concession by a defendant that only a proportion of a drug quantity was possessed for supply is a material factor in assessing the objective gravity of a supply offence; the sentencing court must calibrate its assessment accordingly.
  • In dismissing grounds 1 and 2, the Court of Criminal Appeal noted that a successful ground requiring resentencing can render it unnecessary to resolve other alleged errors where the relevant matters are substantially subsumed in the analysis on the successful ground.
  • The Court of Criminal Appeal applied a 25% discount for the utilitarian value of early guilty pleas entered in the Local Court, consistent with the agreed position at first instance, and found special circumstances justifying a non-parole period at 65% of the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93G(1)(a)(i), 193C(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Firearms Act 1996 (NSW), ss 7(1), 65(3)

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Einfield v R (2010) 200 A Crim R 1; [2010] NSWCCA 87
- Georgopolous v The Queen [2010] NSWCCA 246
- Island Maritime Limited v Filipowski 226 CLR 328; [2006] HCA 30
- R v Becker [2019] NSWSC 1205
- R v Jacobs (No 9) [2013] NSWSC 1470
- R v Kearnes (No 2) [2013] NSWSC 1652