Anargiros v The Queen

[2016] NSWCCA 134

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Anargiros v R [2016] NSWCCA 134
Hearing dates:	23 June 2016
Date of orders:	11 July 2016
Decision date:	11 July 2016
Before:	Ward JA at [1]; Price J at [2]; McCallum J at [39]
Decision:	Leave to appeal against sentence refused
Catchwords:	CRIMINAL LAW – appeal against sentence – poor health – whether decision to confine applicant’s poor health to considerations of special circumstances and not to the head sentence was erroneous – concession made by applicant’s senior counsel before sentencing judge – whether leave to appeal should be granted
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s 25 Firearms Act 1996 (NSW), ss 50A, 51B, 51BA, 65
Cases Cited:	Bell v R; Jelisavac v R [2009] NSWCCA 206 Betts v R [2015] NSWCCA 39 R v Fidow [2004] NSWCCA 172 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 R v Sellen (1991) 57 A Crim R 313 Trindall v R [2013] NSWCCA 229 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Principal judgment
Parties:	John Anargiros (Applicant) Regina (Respondent)
Representation:	Counsel: P. Lange (Applicant) H. Baker (Respondent)   Solicitors: S. Alexander (Applicant) C. Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/172940
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 November 2014 Before: Bennett SC DCJ File Number(s): 2013/172940

Judgment

1. WARD JA: I agree with Price J.

2. PRICE J: The applicant pleaded guilty in the Local Court to the following charges:

• Sequence 1: between 15 January 2013 and 18 March 2013, the applicant supplied firearms three times or more, being one sawn-off .22 calibre rifle, one .22 calibre Remington rifle, one .22 calibre Winchester rifle and eleven .22 calibre pen guns contrary to s 51B(1) of the Firearms Act 1996 (NSW). Maximum penalty – 20 years imprisonment with a standard non-parole period of 10 years.

• Sequence 13: between 15 January 2013 and 18 March 2013, the applicant manufactured prohibited firearms, being pen guns, without being authorised by licence or permit contrary to s 50A(2) of the Firearms Act. Maximum penalty – 20 years imprisonment.

• Sequence 14: on 8 April 2013, the applicant supplied a prohibited drug, namely ephedrine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Maximum penalty – 15 years imprisonment and a fine of 2,000 penalty units ($220,000).

3. Upon being committed for sentence to the District Court, the applicant adhered to his pleas. He asked Bennett SC DCJ to take into account eight matters on a Form 1 when imposing sentence for the charge of supplying firearms three times or more (Sequence 1). These offences were:

• One charge of selling a prohibited firearm part on 18 March 2013 contrary to s 51BA(2) of the Firearms Act. Maximum penalty – 10 years imprisonment.

• Five charges of selling ammunition without a licence or permit, contrary to s 65(1) of the Firearms Act. Maximum penalty for each offence – a fine of $5,000.

• Two charges of possessing ammunition without holding a licence, permit or authority contrary to s 65(3) of the Firearms Act. Maximum penalty for each offence – a fine of $5,000.

4. A discount of 25% was allowed by the judge for the utilitarian value of the pleas of guilty.

5. The indicative sentences specified by his Honour were:

• For the supplying firearms charge (Sequence 1), 9 years imprisonment with a non-parole period of 5 years;

• For the manufacturing prohibited firearms charge (Sequence 13), 6 years 6 months imprisonment with a non-parole period of 4 years 6 months; and

• For the supply of ephedrine (Sequence 14), imprisonment for 1 year.

6. The judge sentenced the applicant to an aggregate sentence of 10 years imprisonment commencing 5 June 2013 and expiring 4 June 2023, with a non-parole period of 5 years, expiring 4 June 2018.

7. The applicant sought leave to appeal on two grounds but as the second ground was not proceeded with, it is only necessary to state the remaining ground which contends that the judge erred in finding that the applicant’s poor health was relevant to the setting of the non-parole period, but not the head sentence.

8. As the focus of the appeal is confined to this issue, it is unnecessary to refer at length to the facts of the case and the applicant’s personal circumstances, other than his health.

9. A convenient summary of the agreed facts is found in the respondent’s written submissions (RWS pp 2-3):

“5. In May 2012 police began an investigation into the supply of firearms and drugs in Metropolitan Sydney. This included the use of telephone intercepts, surveillance, a registered source and an undercover operative. The applicant (then aged 51) was identified as an illegal firearms dealer and police targeted his activities. Between January 2013 and June 2013 the applicant supplied a firearm on four occasions to either the source or the undercover operative (Sequence 1). On each occasion the applicant supplied ammunition that could be used with the firearms (Form 1 matters). At the first sale the applicant stated that he could supply 20-30 ‘pen pistols’ at a time and they could be delivered within three days. The source ordered ten ‘pen pistols’ which were later supplied with 1,693 rounds of ammunition. The applicant manufactured and assisted in the assembly of the ‘pen pistols’ (Sequence 13). During this period the applicant also made it clear that he had the capacity and motivation to supply more firearms and ammunition if needed. In April 2013 the applicant supplied the undercover operative with a prohibited drug, ephedrine (Sequence 14). All of the firearms were later test fired and were in working order.

6. The following is a summary of the dates of the transactions, the charge sequences and the items seized:

CHARGE SEQUENCE	DATE OF EVENT	ITEM SEIZED
Sequence 1 - 1st sale	15 January 2013	One sawn-off (shortened) rifle
Sequence 1 – 1st sale	15 January 2013	One homemade ‘pen pistol’
Form 1, item 2 Sequence 8	15 January 2013	43 x .22 calibre ammunition
Sequence 1 – 2nd sale	13 February 2013	one .22 calibre Remington rifle
Form 1, Item 3 Sequence 9	13 February 2013	100 x rounds of ammunition
Sequence 1 – 3rd sale	15 February 2013	One .22 calibre Winchester lever action rifle
Form 1, Item 4 Sequence 10	15 February 2013	Five rounds of ammunition
Sequence 1 – 4th sale	7 March 2013	10 x .22 calibre ‘pen pistols’
Form 1, Item 5 Sequence 11	7 March 2013	1693 x bullets of various calibres
Form 1, Item 1 Sequence 7	18 March 2013	Two empty magazines
Form 1, Item 6 Sequence 12	18 March 2013	100 x .22 calibre bullets
Sequence 13	Between 15 January 2013 - 18 March 2013	Manufactured ‘pen pistols’
Sequence 14	8 April 2013	Supply prohibited drug (ephedrine)
Form 1, Item 7 Sequence 16	5 June 2013	60 x .22 calibre bullets (Found during search)
Form 1, Item 8 Sequence 17	5 June 2013	50 x bullets of various calibres (Found during search)

”

10. The applicant did not give evidence during the proceedings on sentence but a psychologist’s report, a number of medical reports, hospital notes and some character references were tendered.

11. During the remarks on sentence, the judge referred to the applicant’s subjective circumstances in some detail. Other than those matters relevant to the applicant’s health, the judge’s remarks included:

1. The applicant was born in 1962 and was 54 years old at the time of sentence.

2. He had one offence on his criminal history of driving unlicensed in 2007. His Honour observed that it was unusual to see someone embarking on such serious criminal conduct without a greater antecedent criminal history.

3. He had been in custody since the date of his arrest and was on protection due to concerns for his safety. He had been compliant in custody and was not considered a management concern.

4. He was born in Greece and came to Australia as a child. He grew up in a supportive family and there was nothing in his background to explain his criminal actions.

5. He was previously married and has an adult daughter. A relationship of two years ended while he was on remand.

6. He made representations to the author of the pre-sentence report that he committed the offences because a friend’s debt was placed on him when the friend could not be located. The applicant attributed his decision to offend due to concerns for his safety after being threatened by others involved. He stated that he was “so sorry” for his actions. His Honour was circumspect about these representations in accordance with the statement of principles in cases such as R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353.

12. The judge found that the applicant’s explanation for his misconduct was inconsistent with his electronically recorded conversations and even if he had committed the offences to fulfil a debt it would make little difference to the punishment he would face.

13. His Honour concluded that the applicant had committed the offences for financial reward and expressed concern that the firearms would have found their way into the community and the use to be made by criminals of the manufactured pen guns.

14. The applicant’s prospects of rehabilitation were said by the judge to be good but his Honour was not satisfied that the applicant was appropriately remorseful and contrite.

The applicant’s health

15. The medical reports disclosed that the applicant suffered from dilated cardiomyopathy, chronic atrial fibrillation, obstructive sleep apnoea, dyslipidaemia and impaired liver function.

16. In a report dated 7 October 2014, Rima Nasr, psychologist, stated that the applicant reported that he was diagnosed with sleep apnoea and cardiomyopathy approximately two years ago, causing a rapid decline in his physical health. The primary symptoms that the applicant suffered from reportedly related to breathlessness, fatigue, dizziness and a lack of energy making daily responsibilities and self-care difficult to maintain. He engaged in fewer activities to avoid exertion. While this assisted with his breathing, the applicant said that his symptoms persisted.

17. The applicant told Ms Nasr that he fainted approximately monthly, requiring him to be placed in a ‘safe cell’ to be monitored regularly by prison staff. He had previously been placed at Long Bay Hospital for seven months where he spent large amounts of time in the clinic. The applicant said that his symptoms were worsening over time, causing him to feel anxious about dying in custody without the presence of his family. He stated that approximately seven months ago, he had a pacemaker and cardioverter defibrillator inserted. The applicant told Ms Nasr that while this had assisted with breathing, his symptoms persisted. He had been consulting with a cardiologist, Dr Phong Nguyen, in order to manage his heart condition. His medications included Lasix, Bicor and Plavix. Based on the information provided by the applicant, Ms Nasr opined that “[the applicant] is a high needs person medically, ingesting a large amount of medication to assist him with daily functioning.” (Ex 1, p 5.)

18. In a report dated 23 February 2013, Dr Nguyen stated that the applicant was “a 51 years [sic] old man who was recently diagnosed of [sic] having cardiomyopathy and AF.” (Ex 1, p 19.) Dr Nguyen stated that the applicant was reasonably stable with no sign of any acute heart failure. Dr Nguyen reported that “mostly his underlying cardiomyopathy is caused by perhaps the combination of viral induced [sic] and the heavily [sic] use of ice.” (Ex 1, p 20). He advised the applicant that he needed to be on Warfarin.

19. Dr Sze-Yuan Ooi, in a report dated 28 January 2014, stated that the applicant had a dilated cardiomyopathy, persistent atrial fibrillation and recurrent syncopal episodes. A biventricular defibrillator had been implanted for the applicant’s cardiac conditions.

20. In a Justice Health report dated 20 October 2014, Dr Suresh Badami noted that the applicant had cardiac disease with a pacemaker which was inserted in January 2014. He was housed in Parklea Correctional Centre and managed according to the advice of cardiologists in Prince of Wales Hospital. In an acute situation, the applicant would be taken to the nearest hospital for assessment and management.

21. Following a careful review of the medical evidence and Ms Nasr’s report, the judge said that notwithstanding what appeared to be successful medical intervention, he accepted that “[the applicant] is at risk of his heart failing and it is a matter that I must bring into account when determining the extent to which [the applicant] should be kept in custody, which will impact more heavily upon him than it might on someone who was not so afflicted.” (ROS p 23.)

22. The judge said, “[b]ecause of the severe physical impairment that is described in the medical reports, I propose to reduce the custodial component significantly in this case.” (ROS p 25.)

23. As a result of the finding of special circumstances, the statutory ratio between the non-parole period and the head sentence was varied to 50%.

Ground 1: His Honour erred in finding that the applicant’s poor health was relevant to the setting of the non-parole period, but not to the head sentence

Submissions

24. The applicant contended that, by confining the relevance of his poor health to the assessment of the non-parole period, the judge fell into error. The applicant argued that his poor health was relevant not only to the question of special circumstances, but also to the overall sentence. The applicant submitted that there was no certainty that he would be released on parole upon completion of his non-parole period; consequently, there was a real risk that he would experience a more onerous period of imprisonment, which may be defined by the head sentence rather than the non-parole period.

25. The applicant cited Betts v R [2015] NSWCCA 39 where RS Hulme AJ (Meagher JA and Hidden J agreeing) concluded that the sentencing judge erred in finding that the applicant’s injuries were relevant only to the question of special circumstances.

26. The respondent submitted that had the judge taken into account the applicant’s state of health in reducing the head sentence and in finding special circumstances, his Honour would have been erroneously double counting. The respondent cited R v Fidow [2004] NSWCCA 172; Bell v R; Jelisavac v R [2009] NSWCCA 206.

27. The respondent pointed out that the judge raised this very issue with the applicant’s senior counsel who submitted that the judge’s approach was an appropriate course.

28. As to the applicant’s reliance on Betts, the respondent argued that the Court did not analyse how the applicant’s poor health would be taken into account by mitigating the head sentence where the finding of special circumstances was made only for the reason of the applicant’s poor health. Furthermore, the Court did not allow the appeal.

29. Another submission was that there was nothing in the applicant’s case to support a conclusion that there was a real risk that his health would adversely affect his ability to make or comply with conditions of parole.

Consideration

30. During the proceedings on sentence, the following discussion took place between the judge and senior counsel for the applicant (Tcpt, p 12(4)-(19)):

“SUTHERLAND:	…I don’t labour the point but I do seek to bring to your Honour’s appropriate consideration the ongoing and very serious medical condition that this man labours under. Can I point one other thing out just in--
HIS HONOUR:	--special circumstances, but if it rests there it would be double counting wouldn’t it, to bring into account on the overall head sentence. I would be minded to impose an aggregate sentence I should indicate but--
SUTHERLAND:	Yes, I would have thought that was an appropriate course, if I may say so.
HIS HONOUR:	Special circumstances I would have thought is the place where that would sit.
SUTHERLAND:	Yes. …” [Emphasis added.]

31. It is evident that the applicant’s senior counsel considered that it was appropriate for the applicant’s poor health to be taken into account as a special circumstance but not as a matter that would impact upon the head sentence. No submission was made to the judge that to do otherwise would not amount to double counting.

32. This Court has emphasised that appeals do not provide an occasion to revise or reformulate cases argued before a sentencing judge. Arguments that are raised on appeal that retract or contradict submissions made below will not be entertained unless it can be demonstrated that there has been a miscarriage of justice arising from the plea and sentence: Zreika v R [2012] NSWCCA 44 at [79]-[83].

33. The applicant’s argument seeks to resile from a concession made by senior counsel in response to the judge’s indication that his consideration of poor health would be confined to a variation of the non-parole period.

34. I do not think that, on the facts of this case, senior counsel’s concession was inappropriate. Poor health rendering imprisonment more burdensome may establish special circumstances but does not mandate a lesser head sentence: see, for example, R v Sellen (1991) 57 A Crim R 313. Furthermore, this Court has warned against double counting for matters already taken into account in calculating the head sentence, when finding special circumstances: Fidow at [18]; Trindall v R [2013] NSWCCA 229 at [17]; Bell; Jelisavac at [73].

35. In Betts, the Court determined that the serious injuries suffered by the offender in that case might impact upon the period of his sentence whilst at liberty and the judge erred in limiting the significance of these injuries to the non-parole period.

36. In the present case, there was simply no evidence before the judge which established that the applicant’s medical conditions will limit his ability to comply with terms that may be imposed as conditions of parole. In any event, it is reasonable to expect that his parole conditions will be crafted in such a way to take into account his health at the time he is to be released on conditional liberty.

37. I am not persuaded that the judge erred. Moreover, as the applicant’s attempt to resile from a concession made to the sentencing judge has not been justified, I would refuse leave to appeal.

38. Accordingly, I propose the following order:

Leave to appeal against sentence refused.

39. McCallum J: I agree with Price J.

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Decision last updated: 11 July 2016