Andary v The Queen

[2020] NSWCCA 75

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Andary v R [2020] NSWCCA 75
Hearing dates:	15 April 2020
Date of orders:	22 April 2020
Decision date:	22 April 2020
Before:	R A Hulme J [1] Hamill J at [2] Wilson J at [54]
Decision:	(1)   Leave to appeal granted. (2)   Appeal upheld. (3)   Quash the sentence imposed in the District Court and in lieu thereof: (4)   The applicant is sentenced to an aggregate sentence of 3 years and 3 months imprisonment commencing 5 October 2018 and expiring on 4 January 2022 with a non-parole period of 2 years commencing 5 October 2018 and expiring 4 October 2020. The applicant will be eligible for release to parole at the expiration of the non-parole period.
Catchwords:	CRIMINAL LAW – sentence appeal – exposing children to drug manufacturing process – applicant rented basement to manufacturer – family lived upstairs – possession of firearms – whether sentencing judge erred in finding drug offence affected objective seriousness of firearms offences – where applicant played no role in drug manufacture – objective seriousness of firearms offence – relevant considerations – applicant re-sentenced
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 32, 53A(2)(b), 54B(4), sch 1 Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1A), 33AC(2) Firearms Act 1996 (NSW), ss 7(1), 7A(1)
Cases Cited:	Akkawi v R; Akkawi v R [2012] NSWCCA 11 Ballard v R [2011] NSWCCA 193 Cao v R [2013] NSWCCA 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 James v R [2017] NSWCCA 287 Krivosic v R [2017] NSWCCA 167 Mokhaiber v R [2011] NSWCCA 10 Moustafa Mariam v R [2017] NSWCCA 292 Mulato v R [2006] NSWCCA 282 R v Amurao [2005] NSWCCA 32 R v AZ [2011] NSWCCA 43 R v Engert (1995) 84 A Crim R 67 R v Mehcur [2002] NSWCCA 56 R v Thurgar (1990) 51 A Crim R 109
Category:	Principal judgment
Parties:	Joe Andary (Appellant) Regina (Respondent)
Representation:	Counsel: SJ Odgers SC (Appellant) P Leask (Respondent)   Solicitors: Kiki Kyriacou Lawyers (Appellant) Director of Public Prosecutions (Respondent)
File Number(s):	2014/243348
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 12 December 2018 Before: Grogin ADCJ File Number(s): 2014/243348

Judgment

1. R A HULME J: I agree with Hamill J.

2. HAMILL J: Joe Andary seeks leave to appeal against an aggregate sentence imposed by his Honour Acting Judge Grogin in the District Court on 12 December 2018. The applicant was sentenced in relation to three counts and three other offences were taken into account in sentencing. [1] The first count charged an offence of knowingly take part in the manufacture of a prohibited drug and exposing a child to the process of manufacture. This is an offence against s 24(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum penalty of 18 years imprisonment: Drug Misuse and Trafficking Act, s 33AC(2). Count 2 was an offence of possessing a prohibited firearm (a .223 Remington calibre Colt Model AR-15 self-loading rifle) contrary to s 7(1) of the Firearms Act 1996 (NSW). This offence attracts a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years. The third count was an offence of possessing a firearm (a .300 Winchester Blaser Model bolt action repeating rifle) contrary to s 7A(1) of the Firearms Act, carrying a maximum penalty of 5 years imprisonment.

   1. Crimes (Sentencing Procedure) Act 1999 (NSW), s 32.

3. In relation to count 2, an offence of possessing an unauthorised firearm and an offence of not keeping a firearm safely were taken into account. In relation to count 3, an offence of acquiring a firearm part without being authorised to do so was taken into account.

4. Grogin ADCJ imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months. The sentence commenced on 5 October 2018 and the non-parole period will expire on 4 April 2021. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour indicated that the following individual sentences would have been imposed, had he not imposed an aggregate sentence:

1. Count 1 – Imprisonment for 2 years and 10 months.

2. Count 2 – Imprisonment for 19 months.

3. Count 3 – Imprisonment of 16 months.

5. Contrary to s 54B(4) of the Crimes (Sentencing Procedure) Act, his Honour failed to indicate a putative non-parole period for count 2. The applicant noted this error but did not advance it as a ground of appeal or suggest that his Honour’s omission vitiated or impacted upon the sentence.

6. The applicant raised the following grounds of appeal:

1. The sentencing Judge erred in treating as a significant factor in assessing the objective seriousness of the firearms offences that the firearms were located in a house in which a large-scale drug manufacturing enterprise was being undertaken.

2. The sentencing Judge erred in holding that the objective seriousness of the prohibited firearm offence was in the "mid-range".

3. The sentencing Judge erred in holding that the applicant's anxiety and depressive disorder did not warrant a reduction in sentence.

The facts of the offences

7. The Prosecutor tendered a statement of agreed facts which was signed by the applicant and the lawyers for both sides. The Prosecutor also tendered a number of other documents including recorded police interviews with the applicant, ballistics reports and photographs and diagrams relating to the firearms offences.

8. The applicant lived in a house in Blacktown along with his partner and their three children aged 10, 8 and 5 years. The house had a separate partitioned area downstairs referred to as "the basement". The basement could be accessed from the main residence, as well as from an external door at the rear of the house. There was no evidence that the applicant had a key to those doors. The doors were locked when police attended the premises on 18 August 2014 and located a large clandestine drug laboratory in the basement. A co-offender named Mr Shaitly was responsible for the manufacturing process that was taking place in the basement.

9. There was a passing reference in the agreed facts to the fact that Mr Shaitly had attended nearby premises (either next-door or across the road; it is difficult to tell) in the weeks and months leading up to the present offences. There was evidence that police found traces of illegal drugs and relevant chemicals at the neighbouring premises. However, there was no evidence that the applicant had attended the neighbouring premises. The relevance of the earlier conduct of Mr Shaitly is not immediately apparent, other than to confirm that the applicant was not involved in the drug manufacturing process.

10. Police located a number of chemicals in and near the basement of the premises where Mr Andary lived with his family. It is not necessary to set out the quantities and types of chemicals in any detail. However, those chemicals were capable of producing significant quantities of methylamphetamine and methoxymethylamphetamine. Mr Shaitly was producing those drugs and the applicant was aware of that fact.

11. The applicant permitted Mr Shaitly to use the basement to manufacture the drugs and, according to the applicant’s recorded interview with police and submissions made in the District Court, charged $100 per week in rent. This was Mr Andary’s only financial reward from the criminal enterprise. There was no evidence that the applicant played any other role in the manufacturing process, in the obtaining of the chemicals, or in the distribution of any drugs that were manufactured. There was no evidence that he entered the basement. DNA and fingerprint evidence gathered from the clandestine laboratory did not establish that the applicant had been inside the basement.

12. It was an agreed fact that "there is an inherent risk in clandestine laboratories of fire and explosions”. It was also an agreed fact that Mr Andary "exposed his three young children to the risks created by the manufacturing processes" and "to the substances that were located in an area outside the laboratory."

13. After the police had examined the basement, they conducted a search of the applicant's home. They located a number of firearms in the master bedroom.

14. The firearm that was the subject of count 2 was a "partially disassembled .223 Remington AR-15 SP1 self-loading rifle with bolt and charging handle removed.” The "firearm was missing a magazine and a retaining pin which is used to secure upper and lower portions of the receiver.” Based on the ballistics evidence, the sentencing Judge found that firing the weapon without the retaining pin would be dangerous to the user. The ballistics expert did not attempt to discharge the weapon in that state but used a retaining pin from a similar gun to test whether the weapon was in working order. Further, the applicant submitted, and the respondent did not dispute, that the gun could not have been used as a repeating or self-loading rifle in the state it was in because there was no magazine. Once re-assembled, the gun was in working order. With the use of a suitable magazine, it was a “self-loading centre-fire rifle” and a prohibited firearm under Clause 3 of Schedule 1 of the Firearms Act 1996. Police also located two boxes of .223 calibre ammunition which could have been used in the AR-15.

15. The police also seized the .300 Winchester Magnum calibre rifle that was the subject of the third count as well as a magazine and ammunition capable of being used in this firearm.

16. The police also located a .338 Lapua Magnum calibre rifle barrel (the firearm part subject to the third matter taken into account on sentencing) and other ammunition.

17. The applicant did not hold a firearms licence or permit in New South Wales in 2014. The evidence (Exhibit J) showed that he had been the holder of a category A, B, H firearms licence issued in May 2006 and due for renewal on 25 May 2011. He also held a probationary pistol licence between January 2009 and February 2010. Both licences had long ago expired by the time Mr Andary was found to be in possession of the various weapons subject of counts 2 and 3 and the Form 1 offences. A firearms dealer, Mr Georgiou, provided a letter saying that Mr Andary had attended his shop on a number of occasions and had always conducted himself in a professional manner. Mr Georgiou also provided an opinion that the AR-15 rifle was dangerous to fire in the absence of the retaining pin. This opinion coincided with that of the police forensic ballistics investigator.

18. Mr Andary gave a false account about the weapons when interviewed by police. He said he did not think the AR-15 was a real weapon, an assertion that the sentencing Judge rejected.

Mr Andary’s personal background and mitigating circumstances

19. Mr Andary was born in November 1972. He was 41 years old at the time of the offences and 46 at the time of sentence. He is now 47. He has no criminal record. The sentencing Judge found that he was a person of prior good character, and that “his ability to remain offence free” during the 4 year period of remand was evidence of “rehabilitation having already occurred.” His Honour found the risk of him re-offending to be low.

20. The applicant entered a late plea of guilty and the sentencing Judge held that it was appropriate to provide a 10% discount for the utilitarian value of the plea of guilty.

21. His partner of 17 years, Ms Azzapardi, provided a letter on sentence which set out the applicant’s relevant family circumstances. Ms Azzapardi had known Mr Andary her whole life. At the time of sentence, the couple had three children aged 15, 12 and 9. She was pregnant and expecting “baby number 4” on 31 December 2018. She was pregnant with twins but one of the twins had not survived the first trimester. Ms Azzapardi described the applicant as extremely caring and family-oriented. She said that Mr Andary was the sole income earner in the family and that she was extremely anxious about him being sent to prison. Ms Azzapardi had a number of medical conditions including thyroid goitre and a painful and debilitating knee injury (a complex tear of the lateral meniscus). There was medical evidence supporting the existence of these conditions as well as the difficulties surrounding the pregnancy.

22. Mr Andary left school after year 10 and obtained employment detailing cars before training as a tiler for 4 years. He started his own tiling business and had remained in that occupation ever since.

23. Eight extremely favourable character references were tendered. Mr Andary was described as “honest, solid and hardworking”, “completely devoted to his family”, “a person of good repute and an honest hardworking family man”. Some of the referees referred to the fact that he had worked in his tiling business up until the day before his sentencing hearing. A number referred to conversations they had with him about the offences and were of the opinion that he was remorseful and unlikely to offend in the future. He was said to be a “community minded” person who put the needs of others before his own. Mr Andary had contributed to the community by coaching junior rugby league for Wentworthville Juniors and the Blacktown Workers Club and was highly regarded for his contribution in that capacity.

24. A psychologist examined Mr Andary in advance of the sentencing hearing and expressed the opinion that he suffered from a depressive disorder and was highly anxious. This evidence is relevant to the third ground of appeal and will be discussed in a little more detail under that ground.

Ground 1: The sentencing Judge erred in treating as a significant factor in assessing the objective seriousness of the firearms offences that the firearms were located in a house in which a large-scale drug manufacturing enterprise was being undertaken

25. Grogin ADCJ accepted a submission made by the Prosecutor that "the firearms were located in a house in which a large scale drug manufacturing enterprise was being undertaken" and that this was "a significant factor in assessing the objective seriousness of the firearms offences."

26. The applicant submits this finding was erroneous and not open on the evidence. The applicant also submits that the finding was not consistent with other findings made explicitly or implicitly by the sentencing Judge. The respondent contends that the finding was open on the evidence. It was put that the approach was consistent with a number of authorities in which this Court has held that the fact that guns are possessed in connection with another criminal offence or offences, is relevant to an assessment of the objective seriousness of a firearms offence: R v Thurgar (1990) 51 A Crim R 109 at 113. Many of these cases are concerned with drugs and support the proposition that “the essence of criminality is somewhat enhanced by the connection between the drug offence and the possession of the firearms”: R v Mehcur [2002] NSWCCA 56 at [25].

27. The applicant's submissions on this issue are correct. There was no evidence to connect the possession of the firearms with the drug manufacturing offence.

28. The evidence showed, and the sentencing Judge accepted, that the applicant had no role in the manufacturing process other than to rent the basement to Mr Shaitly. There was no evidence that the applicant might have used the guns in connection with the drug manufacture operation. The fact that the applicant was not otherwise involved in the drug manufacturing process undermines any assertion that the possession of the guns was connected with the drug offence or any other criminal enterprise. The guns were not, as some of the cases say, the “tools of trade” of a criminal or drug dealer. Added to that was the fact that the evidence showed that the applicant had an interest in firearms going back a number of years. He was licenced from at least 2006. In assessing this aspect of the case, it is also relevant that Mr Andary was otherwise a person of good character.

29. Unlike many of the other cases upon which the Crown relied both at first instance and in this Court, the firearms were not located with the drugs: see, for example, R v AZ [2011] NSWCCA 43 at [76], Cao v R [2013] NSWCCA 321 at [11], Krivosic v R [2017] NSWCCA 167 at [15], [16], [63], James v R [2017] NSWCCA 287 at [12]-[17].

30. In this case, the manufacturing process was taking place in the basement behind locked doors, while the guns were located in a wardrobe in the master bedroom upstairs. There was no evidence of any connection between the firearms and the drug business: see Ballard v R [2011] NSWCCA 193 at [8], [11], [41]. It was not a case where there was any evidence capable of establishing that the applicant intended to use the guns if necessary to protect the drug business: cf R v Amurao [2005] NSWCCA 32 at [68]. The guns were not the “tools of trade” of a criminal enterprise: R v Amurao at [69].

31. The first ground of appeal is established. The sentencing Judge fell into error in proceeding on the basis that the guns were located in the same premises as the clandestine laboratory, and by taking this into account as a “significant factor” in assessing the objective gravity of the firearms offences.

Ground 2: The sentencing Judge erred in holding that the objective seriousness of the prohibited firearm offence was in the "mid-range"

32. I am also satisfied that the sentencing Judge’s assessment of the objective criminality of count 2 was erroneous. His Honour found that this offence fell in the mid-range of objective seriousness. In reaching this conclusion, I am conscious of the reluctance of intermediate appellate courts to interfere with evaluative assessments made by sentencing judges as to the objective seriousness of an offence: see, for example, Mulato v R [2006] NSWCCA 282 at [46] (Simpson J, as her Honour then was). However, the error identified in ground 1 must have impacted on the assessment of the objective criminality of count 2, and it is a matter that would need to be revisited for that reason alone.

33. The firearm in question was a prohibited weapon pursuant to Clause 3 of Schedule 1 to the Firearms Act. That clause relates to self-loading rifles; that is, a gun capable of firing multiple rounds without the user needing to re-load the chamber manually. Whilst the ballistics evidence established that the item was a self-loading rifle, the absence of a magazine meant that it was not capable of being used as a repeating rifle in the state that it was found. Further, the fact that the retaining pin was missing meant that the weapon would have been dangerous to fire at all. The weapon was partially disassembled when police located it. Whilst ammunition was also located in the applicant's bedroom, the weapon was not loaded: cf, for example, Moustafa Mariam v R [2017] NSWCCA 292 at [25].

34. Taking the above matters into account, and considering the kinds of weapons contemplated by Schedule 1 to the Firearms Act, I am satisfied that the applicant has established the ground asserting that his Honour erred in his assessment of the objective criminality of this offence. In my view, the offence was more properly categorised as falling below the mid-range of objective seriousness. The presence of ammunition, the nature of the weapon and the fact that it was unsecured meant that it was above the low range for such offences. The offence fell somewhere between the low and mid-range of objective seriousness.

35. Ground 2 is also established.

Ground 3: The sentencing Judge erred in holding that the applicant's anxiety and depressive disorder did not warrant a reduction in sentence

36. A forensic psychologist, Mr Watson-Munro, described Mr Andary as a “co-operative though highly stressed, anxious and depressed man” who was “psychologically troubled”. Mr Watson-Munro examined Mr Andary on 7 August 2018. He expressed the opinion that psychometric testing confirmed his clinical impression that Mr Andary had a “Depressive Disorder (Severe and Recurring) according to DSM-5 criteria.” He said it was evidence that he “has suffered significant depression and anxiety, certainly from the time of being charged, with it now continuing to escalate as his sentence hearing approaches”. The applicant’s “primary focus appears to be that of his wife and children, who are all dependent upon him”.

36. The depression and anxiety were caused by Mr Andary’s legal predicament and developed after his arrest. It was not a case where there was a pre-existing mental condition that caused or contributed to the commission of the offence. Rather, it was a reactive depression and its cause was the applicant's concerns about who would care and provide for his family if he was sent to prison.

37. The sentencing Judge said “I accept that the offender suffers from anxiety and a depressive disorder”. However, his Honour said:

“I do not accept that his anxiety and depressive [disorder] would warrant a reduction in any sentence to be imposed. It may manifest itself in the finding of special circumstances in the event that a custodial sentence is imposed.”

39. The basis of his Honour’s conclusion seemed to be that the disorder “evolved following his charging with the current offences.”

40. The applicant submitted that the sentencing Judge erred in treating the matter in this way. It was submitted that the depressive condition, and Mr Andary’s anxiety that his wife and children would suffer because of his incarceration, were relevant to the question of whether a custodial sentence may weigh more heavily on him and make his time in gaol more onerous: see, for example, Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [177], Mokhaiber v R [2011] NSWCCA 10 at [31]. It was also submitted that, if the mental condition was relevant to the length of the non-parole period as his Honour seemed to accept, it was also relevant to the total sentence. A sentencing court cannot assume that an offender will be released at the conclusion of the non-parole period.

41. While these propositions are legally correct, there was no evidence that Mr Andary’s depression and anxiety would make his experience of gaol more onerous. Mr Watson-Munro did not provide an opinion on the issue. Most offenders facing a gaol sentence for the first time will have concerns for their family and loved ones and many will have a psychological reaction to this. The evidence of a reactive depression such as that referred to in Mr Watson-Munro’s report does not have some “automatic consequence” in the sentencing process: cf R v Engert (1995) 84 A Crim R 67 at 68.

42. In the absence of evidence that Mr Andary’s time in prison would be more onerous as a result of his depression, anxiety and concerns for his family, it was open to the sentencing Judge to conclude that it was not a matter that should result in a shorter overall gaol sentence.

43. I would reject ground 3.

Re-sentencing and whether a less severe sentence is warranted.

44. Having found error under grounds 1 and 2, it is necessary to exercise the sentencing discretion afresh. In addition to the substantial subjective case established at the sentencing hearing, the applicant read an affidavit of his solicitor on "the usual basis" at the hearing of the appeal. This affidavit helpfully summarised a large number of corrective services records which were annexed to the affidavit. Without going into great detail, the material demonstrated that Mr Andary has been an industrious inmate during the period of his incarceration. There are many positive reports. He commenced work release in late March 2020 and was approved for early release to parole "due to his exemplary behaviour and conduct."

45. Counsel appearing for the applicant at first instance made an earnest submission that the case might appropriately be disposed of, other than by way of a full-time custodial sentence. Obviously, by the time the appeal was heard, there was no utility in pressing such a submission. Even so, it is necessary to record that the seriousness of the offending in the present case was such that no penalty other than imprisonment is appropriate: Crimes (Sentencing Procedure) Act 1999, s 5(1). Further, there is no alternative to that sentence being served by way of full time gaol. While the applicant's role in the manufacture offence was at the lowest level, the gravamen of the offence with which he was charged was the fact that he exposed his three young children to an illicit drug manufacturing process which is inherently and notoriously dangerous. The manufacture of amphetamines and similar substances presents a high risk of explosion and fire. The applicant's children were living in the premises above the basement where this manufacturing process took place. The applicant was well aware of this. The maximum penalty of 18 years reflects the seriousness of this offence.

46. Further, each of the firearms offences was serious in their own right. Whilst count 2 fell below the mid-range of objective seriousness, there is a substantial maximum penalty and standard non-parole period attached to this offence. Due to his prior interest in guns, the applicant must have known that he was engaging in seriously criminal conduct by having the firearms, along with the necessary ammunition, in his possession and stored in an unsafe manner. The fact that the guns were not to be used in connection with any other criminal offence does not mitigate to any great extent the circumstance of his possession of those weapons. While an aggregate sentence will be imposed, there must be a degree of partial, be it implicit or putative, accumulation of the sentences.

47. Having said those things, I accept that the applicant presented a powerful personal case, including by establishing his close connection to his family, his related anxiety and depressive disorder and tendering an impressive array of character testimonials. Mr Andary had an excellent employment record going back to the time he left school and had no previous criminal convictions. His prospects of rehabilitation are good and he is unlikely to offend again.

48. Like the sentencing Judge, I would impose an aggregate sentence and reduce each of the indicative sentences by 10% to reflect the utilitarian value of the applicant's belated plea of guilty. Like his Honour, I would find special circumstances based on the applicant's need for structured supervision on his re-entry into the community, and noting the depression and anxiety he suffers out of concern for his family.

49. I have taken the matters on the Form 1 into account, noting that this will result in slightly higher indicative sentences on counts 2 and 3, due to the increased weight to be afforded to the principles of specific deterrence and retribution. However, on my reading of the material, the applicant is a person who has been deterred by the fact he was incarcerated rather than by the length of the period of incarceration.

50. For the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, I indicate the following sentences that would have been imposed if an aggregate sentence was not imposed:

Count 1: Commencing with a sentence of 3 years reduced by 10% for the plea of guilty, a sentence of 2 years and 8 months imprisonment.

Count 2: Commencing with a sentence of 18 months reduced by 10%, a sentence of 16 months imprisonment with a non-parole period of 10 months.

Count 3: Commencing with a sentence of 14 months reduced by 10%, results in a sentence of 12½ months.

51. The putative sentences have been rounded down to avoid indicating sentences expressed in weeks and days: Akkawi v R; Akkawi v R [2012] NSWCCA 11 at [101]-[102].

52. I would impose an aggregate sentence of 3 years and 3 months imprisonment with a non-parole period of 2 years.

Orders

53. I propose the following orders:

1. Leave to appeal granted.

2. Appeal upheld.

3. Quash the sentence imposed in the District Court and in lieu thereof:

4. The applicant is sentenced to an aggregate sentence of 3 years and 3 months imprisonment commencing 5 October 2018 and expiring on 4 January 2022 with a non-parole period of 2 years commencing 5 October 2018 and expiring 4 October 2020. The applicant will be eligible for release to parole at the expiration of the non-parole period.

54. WILSON J: I agree with Hamill J.

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Endnote

Decision last updated: 22 April 2020