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Court of Criminal Appeal 27 November 2023

Andreou v R

[2023] NSWCCA 295

DrugsFirearms & weapons
CRIMES APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS

Citation: Andreou v R [2023] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 27 November 2023
Judge(s): Ward P; Walton J; Fagan J

Background

The applicant, a 31-year-old man with no prior convictions, pleaded guilty in the Local Court to six offences committed primarily in June 2021. The most serious offence involved the supply of a pump action shotgun, with negotiations occurring in March and April 2020 through an encrypted messaging application called "ANOM," which had been penetrated by law enforcement. Messages revealed that the prospective buyer intended to use the weapon to prevent being cheated in a drug transaction.

Police executed a search warrant at the applicant's residence following their discovery of the encrypted communications. That search uncovered gel-blasters styled to resemble prohibited firearms, a police uniform, cash and precious metals suspected to be proceeds of crime, and cocaine. The applicant was sentenced in the District Court by Baly SC DCJ on 16 September 2022, receiving an aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years, after a 25% discount for guilty pleas.

The applicant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 5 years with a 3-year non-parole period was manifestly excessive.
  • Whether the indicative sentence for the most serious offence (supply of a prohibited firearm under s 51(2A) of the Firearms Act 1996 (NSW)) was itself excessive.
  • Whether the indicative sentences imposed for the lesser offences were excessive.
  • Whether the degree of notional accumulation applied across all offences was unreasonable.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the aggregate sentence was not manifestly excessive.

On the most serious offence, the supply of the pump action shotgun carried a maximum penalty of 20 years and a standard non-parole period of 10 years. The Court agreed with the sentencing judge's characterisation of the offence as "profoundly antisocial," noting the applicant had shown no concern for the criminal purpose to which the weapon would be put. The indicative sentence of 3 years and 3 months (with a non-parole period of 2 years and 3 months) was within the sentencing discretion and consistent with sentences for comparable offending.

The Court acknowledged that the applicant challenged the indicative sentences for some of the lesser offences as excessive, but did not sustain that contention. Critically, even if some individual indicative sentences were open to criticism, this did not mean the aggregate was necessarily excessive.

On the question of accumulation, the Court noted that the total accumulation on top of the indicative sentence for the shotgun supply was modest: only 1 year and 9 months on the head sentence and 9 months on the non-parole period, to account for all remaining offending. The Court emphasised that fixing an aggregate sentence is not a purely mathematical exercise of addition, but the degree of accumulation here did not render the overall sentence excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence must be assessed holistically, not by mechanically adding individual indicative sentences.
  • The supply of a prohibited firearm under s 51(2A) of the Firearms Act 1996 (NSW) engages strong general deterrence considerations, reflecting Parliament's intent to prevent lethal weapons reaching criminal hands.
  • Where the notional accumulation added for multiple lesser offences is modest relative to the indicative sentence for the principal offence, this weighs against a finding of manifest excess even if some individual indicative sentences might be arguable.
  • A finding that indicative sentences for minor offences were excessive does not automatically establish that the aggregate sentence is manifestly excessive, particularly where the accumulation component is small.
  • The Court confirmed that the context of a firearm supply, including the clearly criminal purpose of the intended buyer as evidenced through encrypted communications, is a relevant factor in assessing the seriousness of the offending and the appropriateness of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Explosives Act 2003 (NSW), s 6(1)
- Firearms Act 1996 (NSW), ss 4, 7(1), 51(2A), 65(3), Schedule 1
- Police Act 1990 (NSW), s 203(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases cited: No cases were cited in the provided text of the judgment.