Asfour v Polosak

[2022] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Asfour v Polosak

Citation:

[2022] ACTSC 305

Hearing Date:

4 November 2022

DecisionDate:

4 November 2022

Before:

Elkaim J

Decision:

(a)    The appeal is allowed.

(b)    The sentence for the trafficking charge is set aside.

(c)    For the trafficking charge the appellant is sentenced to a term of imprisonment of 13 months and two weeks, to commence on 21 June 2022 and expire on 3 August 2023.

(d)    The sentence of imprisonment for the possession charge is confirmed. The sentence is to commence on 3 April 2023 and end on 2 September 2023.

(e)    The total sentence of imprisonment is 14 months and 13 days.

(f)    I set a non-parole period of 9 months to commence on 21 June 2022 and end on 20 March 2023.

Catchwords:

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APPEAL – APPEAL FROM MAGISTRATES COURT DECISION – inconsistency of findings – consequence on sentence – whether specific error – error established – appellant re-sentenced

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 10

Parties:

Joshua Asfour (Appellant)

Robert Polosak (Respondent)

Representation:

Counsel

J Sabharwal (Appellant)

B Morrisroe (Respondent)

Solicitors

Tim Sharman Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 23 of 2022

Decision under appeal: 

Court/Tribunal:             Magistrates Court

Before:  Chief Magistrate Walker

Date of Decision:          21 June 2022

Case Title:  Police v Asfour

Court File Numbers:      CC14481 of 2020

CC1928 of 2022, CC1929 of 2022

Elkaim J:

1․On 21 June 2022 the appellant was sentenced by the Chief Magistrate in this way:

(a)CC2020/14481: For trafficking in cocaine the appellant received a sentence of 17 months’ imprisonment.

(b)CC2022/1928: For possessing a prohibited firearm he was sentenced to five months’ imprisonment, two months of which were cumulative with the above sentence.

(c)CC2022/1929: For possessing a declared substance he was fined $8500.

2․Other orders were made in relation to a previous Intensive Corrections Order (ICO) but they are not relevant to the appeal, except to note that the three above offences were committed during the term of the ICO.

3․On 19 July 2022 the appellant filed a notice of appeal complaining about the two sentences of imprisonment.

4․There are two grounds of appeal:

(a)The Chief Magistrate erred in her findings about the appellant’s motivation and his prospects of rehabilitation.

(b)The Chief Magistrate did not properly consider alternatives to imprisonment, or, alternatively, did not properly apply the principles of totality.

5․The first ground principally revolved around the motivation for the offence. The rehabilitation question was not pressed with any vigour, although is encompassed within the written submissions.

6․The second ground relates only to the possessing firearm charge. The totality assertion was recognised to have no merit and appropriately abandoned.

7․The respondent disagrees with both grounds and submits that the appeal should be dismissed.

The first ground

8․The appellant’s wife gave oral evidence in which she said that the appellant had resolved to pay back a debt he had incurred through his association with illegal drugs. This evidence was corroborated by the appellant’s corrections supervisor, a Ms Smith.

9․In her sentencing remarks the Chief Magistrate appeared to accept the above evidence and noted that there was no evidence to the contrary.

10․Her Honour said at Transcript page 3.30:

This explanation, accepting the offender’s explanation as to which there is no contrary evidence, is somewhat outside the norm but not unheard of. The offender submits that he was trafficking the drugs to raise money to meet a debt that he incurred when drugs that he was holding for someone else with no intent to sell was seized, leading to his previous conviction and the existing intensive corrections order.

11․As I read the above quoted passage, although Her Honour found the explanation a little unusual, she accepted it. This is to be contrasted with her comments a little later, at line 45, where her Honour said:

The offender also submitted that when apprehended in respect of current offences he was able to meet his $120,000 debt legitimately by offloading property and working harder and coming to some form of resolution that the full amount was not required to be paid. There is no suggestion that this option was not available to him in the first place. In these circumstances the seriousness of the offending is more akin to profit than desperation.

12․The respondent submitted that the two passages do not bespeak any inconsistency. I disagree. Although the finding that illegitimate means for payment of the debt were available and could have been utilised by the appellant, her Honour had specifically accepted that he was trafficking in drugs to pay the debt. It follows that he was not trafficking to make a profit. In my view the categorisation of his actions as “akin to profit” was not a reflection of the evidence and a contradiction of the earlier previous finding.

13․I accept that it could be said that her Honour was saying that if legitimate means to pay the debt had been utilised then the proceeds of the trafficking could be seen as a debt. However her Honour made a specific finding that he was not trafficking for any other reason other than to pay the debt.

14․I am satisfied that there is error. The question is, what is the effect of the error?

15․If the sentence was based on trafficking for profit there could be no argument with this sentence. A crime in which profit is the motive will always be regarded as more serious than the same crime but involving a more benign motivation. Had her Honour not acted as if the motive was profit, it follows that the sentence would have been less severe.

16․Having regard to the criminal history of the appellant, the sentence may not have been a great deal less severe but nevertheless shorter. In my view the appeal on this ground should be allowed and a new sentence imposed. The new sentence will take into account all of the factors found by her Honour other than being equivalent to a profit-making enterprise.

17․Her Honour had allowed a discount of 15 per cent for the plea of guilty. No suggestion was made that this discount should have been larger. I will apply the same discount. I think the head sentence, instead of 20 months should be 16 months. When reduced by 15 per cent, applying a small degree of rounding off, the result is 13 months and two weeks.

18․In relation to rehabilitation the complaint seems to be that her Honour did not take proper account of the appellant’s age when sentencing. The appellant has pointed out that his age was only mentioned in the broad description of the appellant’s background and did not, as it should have, re-emerge as a factor in the consideration of rehabilitation.

19․The appellant also says that her Honour did not take proper account of the effect of continued imprisonment on the appellant’s prospects of rehabilitation.

20․In my view Her Honour did appropriately consider rehabilitation. The fact that she did not mention the appellant’s age when discussing rehabilitation is not of any moment. Her Honour was aware of his age, but more importantly, was specifically aware of the need for rehabilitation. She said that:

Rehabilitation is still a factor for the court’s consideration but significantly less so in light of the offender squandering of his most recent opportunity.

Having regard to the provisions of section 33 of the Sentencing Act, the circumstances of the offending have been addressed above. In short, the offender made a deliberate choice to engage in serious criminal offending despite being given the opportunity to rehabilitate for prior similar offending in the community. (Page 7, from line29)

21․This is an entirely legitimate approach to rehabilitation against the background of the previous ICO.

22․I do not think any asserted error in respect of rehabilitation has been made out.

The second ground

23․This ground only relates to the firearms charge. The complaint is that the learned Chief Magistrate, in sentencing for this ground, did not consider alternatives to imprisonment. She had properly directed herself in relation to s 10 of the Crimes (Sentencing) Act 2005 (ACT) in relation to the trafficking charge but had not done so in relation to the firearms charge.

24․The real issue here is whether or not five months imprisonment was an appropriate sentence for the offence. The difficulty for the appellant is that there is no ground asserting manifest excess.

25․In addition, the previous offending of the appellant had included possession of a replica firearm. There was a little uncertainty as to the use of a gel blaster gun but it seems to be something like a paint ball gun. In appearance, as pointed out by the respondent, it resembles an AK-47.

26․I think this sentence of five months is harsh, but absent an allegation of manifest access I do not see any basis for interference. Nevertheless in the resentencing process it will be open to me to adjust the concurrency of the two sentences in order to alleviate the effects of what might otherwise be seen as a somewhat severe sentence.

Orders

27․The result is that the appellant is to be resentenced the trafficking charge and the whole of the structure of the two sentences is consequently to be re-set.

28․The Chief Magistrate set a non-parole period of 12 months, which is 63 per cent of the total sentence. No complaint was made about this ratio which in any event falls well within the normal range. I will apply the same ratio.

29․I make the following orders:

(a)The appeal is allowed.

(b)The sentence for the trafficking charge is set aside.

(c)For the trafficking charge the appellant is sentenced to a term of imprisonment of 13 months and two weeks, to commence on 21 June 2022 and expire on 3 August 2023.

(d)The sentence of imprisonment for the possession charge is confirmed, except that the sentence is to commence on 3 April 2023 and end on 2 September 2023.

(e)The total sentence of imprisonment is 14 months and 13 days.

(f)I set a non-parole period of 9 months to commence on 21 June 2022 and end on 20 March 2023.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date:

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Amendments

7 November 2022        Replace “he was fined $8500” with “he was sentenced to five months’ imprisonment, two months of which were cumulative with the above sentence” at paragraph [1](b).

Replace “he was sentenced to five months’ imprisonment, two months of which were cumulative with the above sentence” with “he was fined $8500” at paragraph [1](c).