Andreou v The King

[2023] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Andreou v R [2023] NSWCCA 295

Hearing dates:

10 November 2023

Date of orders:

27 November 2023

Decision date:

27 November 2023

Before:

Ward P; Walton J; Fagan J

Decision:

1. Grant leave to appeal.

2. Dismiss the appeal against sentence.

Catchwords:

CRIMES – appeals – appeal against sentence – manifest excess – where applicant pleaded guilty to six offences including supply of shotgun – whether degree of notional accumulation unreasonable – whether indicative sentences nominated for minor offences excessive – where degree of accumulation additional to indicative sentence for most serious offence of supply shotgun very modest – aggregate sentence not manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Explosives Act 2003 (NSW)

Firearms Act 1996 (NSW)

Police Act 1990 (NSW)

Weapons Prohibition Act 1998 (NSW)

Category:

Principal judgment

Parties:

Rex (Respondent)
Luke Andreou (Applicant)

Representation:

Counsel:
V Garrity (Crown/Respondent)
B Parsons (Applicant)

Solicitors:
Solicitor for Director of Public Prosecutions (Crown/Respondent)
Hunter Braddon Lawyers (Applicant)

File Number(s):

2021/162482

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court Wollongong

Jurisdiction:

Criminal

Date of Decision:

16 September 2022

Before:

Baly SC DCJ

File Number(s):

2021/162482

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to two counts of possession of prohibited weapons (gel-blasters), two counts of dealing in property reasonably suspected to be proceeds of crime (combined value of over $294,000) supply 55 g of cocaine and supply a pump action shotgun.

The supply of the shotgun was uncovered by police obtaining access to encrypted messages by which the applicant negotiated the sale of the gun, where the buyer intimated he would be willing to use to prevent a “rip” in a drug transaction.

Allowing a 25% discount for pleas of guilty, the sentencing judge imposed an aggregate of 5 years imprisonment with a non-parole period of 3 years. The sole ground of appeal was manifest excess.

The Court held (Ward P, Walton and Fagan JJ) granting leave to appeal against sentence but dismissing the appeal:

1. The aggregate sentence was not manifestly excessive (at [22]). The indicative sentence for the most serious offence of supplying a shotgun could not be said to be excessive (at [19]-[21]) and the notional accumulation for the several other matters of less gravity was 1 year 9 months on the head sentence and 9 months on the non-parole period. The applicant’s contention that the indicative sentences for some of the lesser offences were excessive was not sustained but in any event in view of the modest accumulation, did not support a view that the aggregate must be excessive (at [17]-[18] and [21]).

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed in the District Court on 16 September 2022 by Baly SC DCJ. The sentence was in respect of six offences for which the applicant entered pleas of guilty in the Local Court. All offences were committed in June 2021, except for sequence 20, the supply of a pump action shotgun, which was committed in March and April 2020.

2. The offences were as follows, with her Honour’s indicative sentences noted:

Seq 1 – Possess prohibited firearm, a gel-blaster in the style of a military rifle, contrary to s 7(1) of the Firearms Act 1996 (NSW) (maximum penalty 14 years imprisonment with a standard non-parole period of 4 years) – indicative sentence 2 years with a non-parole period of 1 year and 3 months.

Seq 6 – Possess prohibited firearm, a gel-blaster in the style of a Glock 17 handgun, contrary to s 7(1) of the Firearms Act – indicative sentence 2 years with a non-parole period of 1 year and 3 months. On a Form 1 the following additional offences were taken into account in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW):

Seq 5 – Possess police uniform, comprising a police baseball cap and reflective vest, contrary to s 203(1) of the Police Act 1990 (NSW) (maximum penalty 2 years imprisonment).

Seq 9 – Possess ammunition, an unspecified quantity of 9mm rounds, contrary to s 65(3) of the Firearms Act (maximum penalty $5,500 fine).

Seq 7 – Deal with property reasonably suspected of being proceeds of crime, $237,000 in cash, contrary to s 193C(1) of the Crimes Act 1900 (NSW) (maximum penalty 5 years imprisonment) – imprisonment for 1 year and 1 month.

Seq 8 – Supply prohibited drug, 55 g of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty 15 years imprisonment) – indicative sentence of 2 years. The following additional offences were taken into account on a Form 1:

Seq 3 – Possess prohibited drug, two vials of Primotestin and six vials of Elanthine, contrary to s 10(1) of the Drug Misuse and Trafficking Act (maximum penalty 2 years).

Seq 16 – Possess prohibited drug, one pack of Diazepam, one of Valium and one of Anastrozole, contrary to s 10(1) of the Drug Misuse and Trafficking Act (maximum penalty 2 years).

Seq 19 – Deal with property reasonably suspected of being proceeds of crime, gold bullion, silver ingots and coins to a total value of $57,776, contrary to s 193C(1) of the Crimes Act (maximum penalty 3 years imprisonment) – imprisonment for 6 months.

Seq 20 – Supply prohibited firearm, pump action shotgun, contrary to s 51(2A) of the Firearms Act (maximum 20 years imprisonment with a standard non-parole period of 10 years) – 3 years and 3 months imprisonment with a non-parole period of 2 years and 3 months.

3. Her Honour also sentenced the applicant for three offences on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). They were as follows, with her Honour’s indicative sentences noted:

Seq 2 – Handling and possessing explosives, a box of fireworks, contrary to s 6(1) of the Explosives Act 2003 (NSW) (maximum penalty 12 months imprisonment or a fine of $27,500) – 2 months imprisonment.

Seq 13 – Possess prohibited weapon, a laser pointer, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (maximum penalty 2 years imprisonment or a fine of $11,000) – 4 months imprisonment.

Seq 13 – Possess prohibited weapon, a laser pointer, contrary to s 7(1) of the Weapons Prohibition Act – 4 months imprisonment.

4. Her Honour imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years. There is only one ground of appeal: that the aggregate sentence is manifestly excessive.

Facts

5. The applicant was 31 years old in June 2021 when most of the offences were committed and when he was arrested. He had no prior convictions. The applicant had an encrypted communication device with access to the application “ANOM”, which was penetrated by law enforcement authorities. As a result of police gaining access to messages sent and received by the applicant they became aware that he was in possession of the police uniform items (seq 5), which he offered for sale through encrypted messages, and that he had offered to sell the pump action shotgun (seq 20).

6. Knowledge of these matters caused police to obtain a search warrant for the applicant’s residence at Horsley. The warrant was executed after the premises had been secured by heavily armed police. Subjective material tendered in the sentence proceeding records that the applicant felt traumatised by the forced entry to his home. However, what occurred was something he had to expect if his activities were discovered. The applicant’s encrypted messaging gave the impression of a person who was in possession of at least one firearm and who offered for sale both the weapon and other items that would likely be of interest to violent criminals. Police were not to know the extent of any connections the applicant might have with criminal elements in the community. Forceful precautions were necessarily taken to protect the lives of officers executing the warrant.

7. The most serious offence committed by the applicant was the supply of the pump action shotgun, seq 20. That weapon is within the category prohibited by item 4 on Sch 1 to the Firearms Act. “Supply” is defined in s 4 of the Act as including the following:

(a)   offer for supply, receive for supply, have in possession for supply or expose or exhibit for supply,

(b)   conduct negotiations for supply.

8. The applicant exchanged messages with a prospective buyer of the shotgun on 29 March 2020 and on 24 and 26 April 2020. One of the applicant’s messages referred to “rips”, meaning attempted sales of drugs in which a seller is cheated by a buyer who takes delivery but does not make payment, or a buyer is cheated by a seller who takes payment but does not make delivery. The prospective buyer of the applicant’s shot gun sent messages on 29 March 2020, apparently referring to an intended drug transaction. Two of the buyer’s messages were as follows:

Oh you will be giving me the pump before I do it.

Swear bra they will be getting blow out of their shoes if they try anything silly.

9. An exchange of messages on 24 and 26 April 2020 was consistent with the applicant having arranged with his buyer to meet and discharge the weapon. The buyer sent a final message to the effect that he would collect rounds of ammunition from the applicant on 27 April 2020. The applicant was sentenced on the basis that it was not proved beyond reasonable doubt that the shotgun had actually been handed over, however there was no such weapon still in the applicant’s residence when the police search was carried out in June 2021 and the messages clearly constituted an “offer for supply” and the “conduct of negotiations”. This offence was serious having regard to the criminal purpose for which the prospective buyer was apparently seeking to acquire the weapon.

10. The next most serious offences were seq 1 and 6, being the possession of gel-blaster prohibited weapons, which duplicated the appearance of, respectively, a military rifle and a Glock handgun.

11. The drug possession charge, seq 8, concerned a significant amount of cocaine, 55 g. The matters on the Form 1 in relation to that charge did not call for any significant uplift of penalty.

12. With respect to the proceeds of crime offences, seq 7 and 19, the sentencing judge rejected the applicant’s claim that he had always had money at home and that his holding $237,000 in cash, rather than depositing it to a bank account, was due to “his cultural upbringing”. Each of the two offences involved considerable value, to a total of over $294,000, the origins of which remained unexplained.

13. The three offences dealt with pursuant to the certificate under s 166 were relatively minor, as expressly recognised by the learned judge and as reflected in the modest indicative sentences.

Subjective circumstances

14. The sentencing judge acknowledged the applicant’s entitlement to leniency on account of the absence of any criminal history. Her Honour accepted that he had a sound history of employment in the motor-vehicle industry, in which he had been hard-working. Up to the time of his arrest the applicant had been in a stable relationship with a female partner, who provided a supportive reference that was taken into account by the learned judge. The applicant acknowledged that for some time he had mixed with antisocial friends whom he described as “bikies” and that in their company he had been partying regularly and using drugs. The judge accepted the applicant’s description of having developed a pattern of drug and alcohol abuse from Thursday to Sunday every week, escalating over the 12 months leading up to his arrest.

15. The applicant was on bail for 15 months from four days after his arrest until sentence was passed. During that interval he consulted a psychologist who assessed him as displaying “a level of immaturity with his decision-making and choices in life”. The psychologist found the applicant genuine in his consultations and considered that he showed no signs of continuing alcohol or drug use. The psychologist’s report referred to him being “traumatised by the arrest”, as referred to earlier in these reasons.

16. The learned judge accepted that the applicant exhibited poor impulse control and immaturity but considered that this called for a measure of specific deterrence in the sentence. It was accepted that he had shown “some remorse” and that he had pro social supports in the community, in particular his former partner. The learned judge considered that the applicant had good prospects of rehabilitation and a low probability of reoffending.

Consideration of the applicant’s argument

17. In support of his contention that the aggregate sentence is manifestly excessive the applicant’s counsel first criticised some of the indicative sentences as being disproportionate to the objective seriousness of the offending and, secondly, argued that the degree of notional accumulation implicit in the aggregate is unreasonable. As to the indicative sentences, counsel’s written argument was confined to the three matters dealt with on the certificate under s 166 of the Criminal Procedure Act, none of which, he submitted, warranted full-time custody. Counsel submitted that each of the short sentences for those matters must have contributed to the notional accumulation that resulted in the aggregate. He argued that those matters should not have made any contribution at all.

18. The difficulty with that approach in the present case is that there does not appear to be any ground for complaint about the sentence indicated for the supply of the pump action shotgun (seq 20) and the amount of accumulation upon that indicative, to arrive at the aggregate, represents very modest additional punishment for all the other matters combined.

19. The learned sentencing judge considered that the applicant had “demonstrated a cavalier attitude” to the supply in seq 20 and that he had “expressed no concern for the intended use of the prohibited firearm but instead his only concerns appeared to be for his associate [the prospective buyer] not being subject to a drug rip and the comfort of his shoulder after having fired the shotgun”. Her Honour described this as “a profoundly antisocial offence”, a characterisation with which this Court agrees.

20. The very high maximum penalties that have been fixed for offences concerning prohibited firearms, in particular for their supply contrary to s 51(2A) of the Firearms Act, indicate the concern with which Parliament views the circulation of lethal weapons outside the licensing and registration regime that has been enacted for the purpose of tightly controlling their availability. The creation of offences with heavily deterrent maximum sentences and standard non-parole periods is plainly intended to prevent prohibited firearms falling into the hands of criminals, who would degrade the peace and order of the community by using them in furtherance of other criminal activities, including drug distribution and robbery. The applicant’s offence fully engaged those considerations. It attracted the imposition of a sentence that would involve significant general deterrence.

21. For seq 20, the indicative sentence of 3 years and 3 months with a non-parole period of 2 years and 3 months, after allowance of a 25% discount for the plea of guilty and taking into account the applicant’s subjective case, was within the range of the learned judge’s sentencing discretion. It is not out of line with sentences that have been passed for similar offending in comparable subjective circumstances. The aggregate term that is now complained of reflects an additional 1 year and 9 months of head sentence, with an additional 9 months’ non-parole period, to take account of all the other offending for which the applicant was before the Court. The fixing of an aggregate sentence is not a merely mathematical process of addition. However, for the purpose of determining the manifest excess ground of appeal in this case, dismemberment and analysis of the aggregate is to some extent necessary in order to test the argument.

22. On the above considerations, the aggregate sentence imposed was not manifestly excessive. The orders of the Court will be:

1. Grant leave to appeal.

2. Dismiss the appeal against sentence.

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Decision last updated: 27 November 2023