Daniel Nawar v The Queen
[2018] VSCA 6
•2 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0242
| DANIEL NAWAR | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2017 0177
| METIN TURKOZU | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 January 2018 |
| DATE OF JUDGMENT: | 2 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 6 |
| JUDGMENT APPEALED FROM: | DPP v Nawar; DPP v Turkozu [2017] VCC 1015 (Judge Smith) |
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CRIMINAL LAW – Appeals against sentence – Guilty pleas to trafficking in small quantity of ice and other charges – Sentence of 3 years’ imprisonment for trafficking charge – Crown concession that sentence manifestly excessive – Appeals allowed – Appellants resentenced to 2 years’ imprisonment for trafficking charge.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant Nawar | Mr R F Edney | David Barrese & Associates |
For the Applicant Turkozu | Ms J Warren | Emma Turnbull Lawyers |
For the Respondent | Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
KYROU JA:
Introduction and summary
The applicants pleaded guilty to the charges set out in the following tables and, on 21 July 2017, they were sentenced as set out in those tables.[1]
[1]DPP v Nawar; DPP v Turkozu [2017] VCC 1015 (‘Sentencing remarks’).
DANIEL NAWAR Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 71AC] 15 years 3 years Base 3 Recklessly causing injury [Crimes Act 1958 s 18] 5 years 2 years 1 year 4 Possession of a firearm while a prohibited person [Firearms Act 1996 s 5(1)] 10 years 1 year 6 months Related Summary Charges 14 Committing an indictable offence while on bail [Bail Act 1977 s 30B] 3 months 3 months Nil 16 Possession of cartridge ammunition without a permit [Firearms Act 1996 s 124(1)] 40 penalty units $1,000 fine - Total Effective Sentence: 4 years, 6 months Non-Parole Period: 3 years Pre-Sentence Detention Declaration: 531 days Section 6AAA Statement: 5 years, 6 months
METIN TURKOZU Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence 15 years 3 years Base 2 Recklessly causing injury 5 years 2 years 1 year Total Effective Sentence: 4 years Non-Parole Period: 2 years, 4 months Pre-Sentence Detention Declaration: 213 days Section 6AAA Statement: 5 years
In the case of Nawar, in addition to the plea, the judge heard an appeal against an aggregate sentence of 9 months’ imprisonment imposed by the Magistrates’ Court on unrelated burglary, theft and recklessly causing injury offences which were committed in November 2015. The judge dismissed the appeal and affirmed the aggregate sentence. He ordered that 5 months of the aggregate sentence be served cumulatively on the sentence of 4 years and 6 months’ imprisonment imposed for the current offences, making an overall total effective sentence of 4 years and 11 months’ imprisonment.
Nawar seeks leave to appeal against sentence on the ground that the sentence imposed for the trafficking charge and the total effective sentence are manifestly excessive. Initially, Nawar also contended that the sentences imposed on charges 3 and 4 were manifestly excessive but this contention was abandoned at the hearing of the application for leave to appeal. Nawar did not seek to challenge the judge’s orders relating to the appeal from the Magistrates’ Court and it was common ground before us that those orders must stand irrespective of the outcome of the application for leave to appeal.
Turkozu also seeks leave to appeal against sentence on the ground that the sentence imposed for the trafficking charge and the total effective sentence are manifestly excessive. Initially, Turkozu also relied on a second ground relating to procedural fairness but this was abandoned at the hearing of the application for leave to appeal.
The Crown has conceded that the sentences imposed on the applicants for the trafficking charge are manifestly excessive. It was common ground that the effect of this concession was that the sentencing discretion was reopened. The applicants submitted that this Court should significantly reduce their sentences for the trafficking charge and make moderate orders for cumulation so as to arrive at substantially lower total effective sentences. The Crown contended that, while the sentences for the trafficking charge should be reduced, the Court should make orders for cumulation which had the effect of preserving the total effective sentences imposed by the judge.
For the reasons that follow, the applications for leave to appeal will be granted and the appeals allowed. The applicants will be resentenced as set out at [71] and [72] below.
Circumstances of offending
On the evening of 15 December 2015, Turkozu and one Bradley Crawford arranged for Turkozu to drive to Crawford’s home for the purpose of a drug transaction. Crawford and Turkozu had known each other for several months prior to the offending and Crawford had previously purchased drugs from Turkozu.
Turkozu and Nawar were driven by a third male to Crawford’s home at about 4:30 am on 16 December 2015. An acquaintance of Crawford, Brendan Canavan, was also at Crawford’s home.
Turkozu, Nawar, Crawford, Canavan and the third male went into a shed. At Turkozu’s request, the third male produced a deal bag containing a small quantity of methylampetamine (‘ice’), which he gave to Crawford and Canavan to sample. Crawford and Canavan used the ice. (Charge 1, which relates to both applicants).
At the hearing of the applications for leave to appeal, it was common ground that the quantity of ice the subject of charge 1 did not exceed 0.75 of a gram. It was also common ground that most trafficking offences involving such a small quantity of ice are dealt with in the Magistrates’ Court where the maximum term of imprisonment that can be imposed is 2 years.
About 15 minutes after the events described at [9] above, Turkozu asked to speak to Crawford in private, and they walked to the front part of the shed. Nawar and Canavan stayed in the rear area of the shed while the third male returned to the car.
After Turkozu and Crawford returned to the rear area of the shed, a commotion broke out between them. Nawar produced a sawn-off .22 calibre bolt action rifle. Nawar fumbled with the rifle and Crawford tried to run behind a workbench. As Crawford began to run, Turkozu took a steel hammer from a workbench and struck Crawford with it on the head, causing Crawford to collapse. (Charge 2).
Canavan saw Nawar holding the rifle. He picked up the stool on which he had been sitting and attempted to hit Nawar with it. Canavan missed and Nawar ran out of the shed. Canavan then went to the front area of the shed where he saw Turkozu standing over Crawford, who was behind the workbench. Canavan jumped on to the workbench and threatened Turkozu with a steel sash clamp. As he did so, Nawar re-entered the shed and fired one shot from the rifle at Canavan, shooting him in the left thigh. (Charge 3).
Turkozu and Nawar ran from the shed and drove away with the third male. Canavan helped Crawford to get into Canavan’s car and drove to the Mansfield Hospital. They were both airlifted to the Alfred Hospital and underwent surgery. Crawford had suffered a fractured skull and small extradural haematoma. Canavan suffered a ‘through and through’ gunshot wound to his left thigh.
A victim impact statement by Crawford describes the effects the offending has had on his quality of life. He now suffers from headaches and light sensitivity, becomes confused easily, has trouble sleeping and has poor short-term memory. He has difficulty controlling his emotions sometimes and becomes frustrated easily. He is self-conscious about the scars on his head and has attempted suicide ‘a couple of times’. He has been unable to work since the offending as he does not have enough energy.
Nawar and Turkozu were arrested separately on 6 January 2016.
When police searched Nawar’s vehicle they located a loaded, sawn-off .22 calibre bolt action rifle (charge 4) and .22 calibre ammunition (summary charge 16). Nawar was on bail at the time of the offending (summary charge 14).
Personal circumstances
Nawar’s personal circumstances
Nawar was 25 years old at the time of the offending and 27 at the time of sentencing.
Nawar is the oldest of three siblings and had a dysfunctional upbringing, including physical and emotional abuse. He started using cannabis when he was 16 years old before being introduced to ecstasy when he was 17, and ice when he was 18. He developed an addiction to ice and became a daily user.
Nawar struggled at school and left during Year 10. Since then he has worked in short-term jobs and has not been employed in consistent or full-time employment.
Nawar’s criminal record report is 21 pages in length and records more than 70 offences.[2] The sentences he has received for those offences commence on 10 July 2007 when Nawar was 17 years old, and end on 3 August 2015, when he was 25.
[2]These offences do not include the offences the subject of the appeal from the Magistrates’ Court to the County Court. See [2] above.
The following prior offending is particularly relevant for present purposes:
(a)On 5 May 2008, Nawar was found guilty by the Melbourne Children’s Court of offences which included assault in company, recklessly causing injury, making a threat to kill and armed robbery. Without conviction, he was released on a Youth Supervision Order for 6 months.
(b)On 14 July 2009, Nawar was convicted of armed robbery, recklessly causing serious injury, attempted armed robbery and affray. He was sentenced by the County Court to detention in a Youth Justice Centre for 2 years and 6 months.
(c)On 9 January 2012, Nawar was convicted by the Broadmeadows Magistrates’ Court of offences which included possession of an unregistered firearm, an unregistered handgun and a prohibited weapon and possession of ice and ecstasy. He was sentenced to 2 months’ imprisonment. On 28 May 2012, the County Court allowed an appeal against that sentence and resentenced Nawar to a community correction order (‘CCO’) for 12 months and a fine of $100. He breached the CCO and on 21 February 2014 the County Court cancelled the CCO and sentenced him to 6 months’ imprisonment.
(d)On 9 August 2012, Nawar was convicted by the Broadmeadows Magistrates’ Court of offences which included possession of amphetamine, another drug of dependence and a prohibited weapon. He was sentenced to a suspended sentence of 6 months’ imprisonment and an aggregate fine of $2,000. He breached the terms of the suspended sentence and was ordered to serve that sentence in custody on 18 January 2013.
(e)On 18 January 2013, Nawar was convicted by the Broadmeadows Magistrates’ Court of offences which included possession of a drug of dependence, possession of cartridge ammunition without a permit, carrying a prohibited weapon, threatening to inflict serious injury, assault with a weapon, assault in company and assaulting police. He was sentenced to 12 months’ imprisonment and was fined $750.
(f)On 14 August 2014, Nawar was convicted by the Broadmeadows Magistrates’ Court of offences which included failure to answer bail and possession of a prohibited weapon. He was sentenced to 90 days’ imprisonment, a CCO of 12 months and a fine of $1,500.
(g)On 3 August 2015, Nawar was convicted by the Melbourne Magistrates’ Court of offences which included possession of ice, GHB and another drug of dependence, possession of a controlled weapon without excuse, breaching the conditions of bail and committing an indictable offence while on bail. He was sentenced to 5 months’ imprisonment, a CCO of 12 months and a fine of $750.
On 1 December 2015, in an incident unrelated to the current offending, Nawar suffered a gunshot wound to his lower abdomen causing a small bowel perforation and pelvic fracture.
A psychological report dated 7 November 2016 was tendered on the plea. The psychologist assessed Nawar’s IQ at 64 and said that he falls in the ‘mildly retarded range’. The report stated that Nawar ‘presents as functionally illiterate and innumerate and as a generally low functioning adult’. The report described him as impulsive due to his unsophisticated social reasoning skills. The report stated that Nawar ‘often makes poor decisions and frequently chooses his course of action based on short-term considerations … He learns poorly and slowly from negative consequences and has a history of drug abuse.’ The psychologist diagnosed Nawar with severe post-traumatic stress disorder (‘PTSD’) following the shooting on 1 December 2015, as well as antisocial personality disorder and severe stimulant use disorder. Notwithstanding these diagnoses, the psychologist’s view was that Nawar’s history of offending was better accounted for by his intellectual impairment and low level of psychosocial functioning. The report stated that Nawar’s PTSD remains untreated and is unlikely to be adequately treated while he is in custody.
Nawar has the support of his immediate and extended family. A character reference from Nawar’s sister tendered on the plea described the progress Nawar had made while in custody, including the strengthening of his religious faith, undertaking qualifications to assist his future prospects of employment and expressing remorse for his actions. Nawar’s aunt and sister both described him as a kind and loving person who was always willing to help others but who had struggled to overcome personal difficulties.
In support of Nawar’s progress towards rehabilitation while in custody, eight negative urine screen records and 15 certificates confirming completion of courses — including in hospitality, information technology and warehousing operations — were tendered on the plea.
Turkozu’s personal circumstances
Turkozu was 23 years old at the time of the offending and 24 at the time of sentencing.
Prior to his arrest, Torkozu resided with his mother, sister and niece. His parents separated in about February 2017 however he maintained contact with his father after his father moved out of the family home.
Turkozu completed Year 12 in 2011. He reached the second year of a plumbing apprenticeship, however on 4 October 2012 he was sentenced to 3 years’ detention in a Youth Justice Centre for the offences of burglary, armed robbery, robbery, intentionally causing injury, reckless conduct endangering serious injury and criminal damage, which prevented him from continuing his apprenticeship. He was also convicted of making a false document to the prejudice of another and was fined $500 on 13 December 2012.
Turkozu’s offending continued after his release from the Youth Justice Centre on parole. On 30 September 2014, Turkozu was convicted of theft from a shop, entering a private place without excuse, criminal damage and possession of cannabis and was fined an aggregate of $1,500.
On 13 May 2015, Turkozu was sentenced to a total effective sentence of 3 months’ imprisonment and a CCO for 12 months for the offences of contravening a family violence intervention order, making a threat to kill, intentionally damaging property, unlawful assault, burglary, theft and wounding an animal.
On 10 June 2015, Turkozu was sentenced to 1 month’s imprisonment concurrent on the sentence imposed on 13 May 2015, for the offence of criminal damage with intention to damage or destroy. Turkozu was also convicted and fined an aggregate of $600 on 11 November 2015 for possession of ice, driving while disqualified and careless driving of a motor vehicle.
Turkozu was subject to the CCO imposed on 13 May 2015 at the time of the current offending, however noncompliance breach proceedings had been commenced prior to 16 December 2015 due to his accrual of 11 unacceptable absences. Turkozu’s CCO was varied and he was given the opportunity to re-engage with it when he was released on bail for the current offending. However, after an initial period of compliance, his engagement with his case manager again declined.
While on bail for the current offending, Turkozu was employed approximately two days per week in the construction industry.
Character references tendered on the plea described Turkozu as a caring, respectful, loyal and compassionate person who has expressed remorse for his actions.
Sentencing remarks
In sentencing the applicants, the judge held that their respective culpability was approximately equal. In relation to the trafficking charge, the judge accepted that Turkozu had arranged the sale of ice and that it was not intended that Nawar would profit from the transaction. However, he held that Nawar was a willing participant who was aware of the purpose of the visit to Crawford’s house and that he took the sawn-off rifle to the meeting because he appreciated that it might be required if things turned out to be difficult.
The judge categorised the applicants’ recklessly causing injury offences as ‘most serious’ examples of the offence.[3] He stated that, although the injuries caused by Turkozu and Nawar were different in nature, their actions had in common that they were performed in a manner likely to cause substantial injury, violently, and in the context of illegal trafficking of a drug of addiction. He had regard to Crawford’s victim impact statement and inferred that Canavan — who did not prepare a victim impact statement — suffered great pain at the time he was shot and suffered the effects of the injury for some time after that.
[3]Sentencing remarks [75]–[76].
The judge categorised Nawar’s offence of possession of a firearm while a prohibited person as serious, noting that a sawn-off rifle’s ‘inevitable use would be in one form of illegal, violent activity or another’.[4]
[4]Sentencing remarks [73].
The judge stated that the applicable sentencing principles were denunciation, specific deterrence for both applicants, general deterrence and protection of the community. In the case of both applicants, the judge concluded that those sentencing purposes could not be achieved by a sentence that did not involve a significant period of immediate incarceration.
In the case of Nawar, the judge accepted that the principle of general deterrence should be moderated as a consequence of his PTSD and because it was unlikely to be properly treated in custody. He also accepted that Nawar’s untreated PTSD would cause a sentence of imprisonment to be more onerous on him than someone without PTSD.
The judge took into account Nawar’s relative youth and offer to plead guilty ‘at a relatively early stage’. He held that the guilty plea not only had utilitarian value but also was ‘a sign of some remorse on [Nawar’s] part and probably [showed] some insight into the wrongfulness of [his] offending and acceptance of responsibility for it’.[5]
[5]Sentencing remarks [37].
The judge found that despite the positive character references tendered on his behalf, Nawar’s prospects of rehabilitation were, at best, fair. He described Nawar’s criminal record as ‘a truly breathtaking one for someone of [his] age’ and ‘truly appalling’.[6] The judge rejected that the fact Nawar had been shot a few weeks before the current offending provided any justification for him carrying the sawn-off rifle or that his intellectual impairment affected his ability to make a rational decision at the time of the offending. To the contrary, it was the judge’s view that Nawar was ‘well aware that what [he was] doing on the night in question was very wrong’.[7]
[6]Sentencing remarks [25], [69].
[7]Sentencing remarks [37], [43].
The judge described Turkozu’s criminal record as ‘appalling’ and stated that it demonstrated that he has ‘very little respect for the law’.[8] Further, he found that Turkuzo’s behaviour while subject to a CCO had been ‘far from satisfactory’.[9]
[8]Sentencing remarks [53].
[9]Sentencing remarks [61].
The judge took into account Turkuzo’s relative youth and plea of guilty which had utilitarian value and indicated that Turkuzo had taken some responsibility for his conduct.
Grounds of appeal
Nawar’s proposed ground of appeal is in the following terms:
The sentences imposed on the charges of trafficking in a drug of dependence, recklessly causing injury, and being a prohibited person possessing a firearm, the orders for cumulation, and total effective sentence:
(i) are manifestly excessive; and
(ii)outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(iii)resulted in a total effective sentence and non‐parole period that was manifestly excessive.
As discussed at [3] above, Nawar abandoned his contention that the sentences for the recklessly causing injury charge and the possession of a firearm charge were manifestly excessive.
Turkozu’s proposed ground of appeal is in the following terms:
The sentence imposed on charge 1 is manifestly excessive having regard to:
athe objective gravity of the offence, in particular that the quantity of the drug of dependence trafficked was less than 0.75 of a gram;
b current sentencing practices;
c the applicant’s guilty plea; and
d the applicant’s youth.
Should a different total effective sentence be imposed?
Parties’ submissions
In the light of the Crown’s concession that the sentences for the trafficking charge are manifestly excessive, it was common ground before us that the applications for leave to appeal should be granted and the appeals allowed. It was also common ground that the sentences for the trafficking charge should be reduced and that the sentences for the other offences should be maintained. What was not common ground was whether orders for cumulation for the charges other than the trafficking charge should leave the total effective sentences unchanged or result in significantly lower total effective sentences.
Nawar submitted that the small quantity of ice that was trafficked and the circumstances in which the trafficking offence was committed meant that the offending involved a very low level of culpability. He emphasised that the trafficking charge could have been heard in the Magistrates’ Court where it was likely that it would not have attracted an immediate term of imprisonment. Even if a term of imprisonment had been imposed, so it was said, it would not have approached 3 years.
Nawar contended that his level of culpability was lower than that of Turkozu because the latter was solely responsible for organising the drug transaction and would be the only one who would profit from it. Also, so it was said, he had not sold any drugs to Crawford previously and it could not be inferred that he would be involved in any drug transactions in the future. According to Nawar, his trafficking offence on 16 December 2015 could properly be regarded as isolated offending of that type.
Nawar relied on the following mitigating factors in support of his submission that a sentence that was significantly less than 3 years’ imprisonment was appropriate for the trafficking charge:
(a)his plea of guilty which, apart from its utilitarian benefit, had demonstrated ‘a sign of some remorse’ and ‘some insight into the wrongfulness of [his] offending and [his] acceptance of responsibility for it’, as found by the judge;[10]
[10]See [41] above.
(b)his functional illiteracy and innumeracy and his limited education and employment history;
(c) his lifelong intellectual impairment with an IQ of 64;
(d) his relative youth;(e)his PTSD which, as accepted by the judge, should moderate the weight to be given to general deterrence;[11]
(f) his significant addiction to ice;
(g) his strong family support and religious conversion while in prison;(h)the likelihood that his experience in prison would be more onerous than for other prisoners because it was probable that he would not receive proper treatment for his PTSD while in custody.
[11]See [40] above.
Nawar tendered a certificate of participation in a substance use program conducted at Port Phillip Prison and the results of urine screens since sentence which showed that he was drug-free.
Nawar submitted that, despite his imposing criminal record, he had no prior convictions for trafficking in a drug of dependence.
According to Nawar, the judge’s order for cumulation of 50 per cent of the sentence for the possession of a firearm charge (but not for the recklessly causing injury charge) was manifestly excessive. This was said to be because the offending the subject of charges 1, 3 and 4 was effectively committed as part of a single transaction. This was said to mean that if the sentence imposed by this Court for charge 3 became the base sentence, only moderate cumulation should be ordered for the sentences for charges 1 and 4.
Turkozu adopted Nawar’s submissions regarding the low level of culpability of the trafficking offence, as informed by the small quantity of ice involved. He submitted that, notwithstanding that the ice was supplied to Crawford and Canavan on 16 December 2015 in order for them to ‘sample’ it, he fell to be sentenced for the single trafficking transaction that took place on that day without regard to any other supplies that may have taken place in the future. He argued that the fact that the drug was supplied as a sample could not be treated as an aggravating factor for sentencing purposes. However, he accepted that it was a relevant consideration in the sense that it precluded him from contending, by way of mitigation, that the offending was an isolated error in judgment.
Turkozu relied on statistics published by the Sentencing Advisory Council which indicated that the vast majority of offences of trafficking in a drug of dependence were dealt with in the Magistrates’ Court which necessarily involved sentences which did not exceed 2 years’ imprisonment. Between 1 July 2013 and 30 June 2016, 71.7 per cent of offenders sentenced to a term of imprisonment by the Magistrates’ Court for trafficking amphetamines received a sentence of 1 year or less.
Turkozu also relied on a table of sentences imposed by the County Court in 2016 on offenders who pleaded guilty to that offence. Unsurprisingly, the table showed that sentences varied greatly depending on the circumstances of each case. Many offenders were sentenced to terms of imprisonment of 1 year or less, or were placed on a CCO or a CCO in combination with a term of imprisonment. However, a number of offenders were sentenced to terms of imprisonment of 2 years or more. A separate ‘Offence Summary’ published by the Sentencing Advisory Council showed that from 1 July 2011 until 30 June 2016, the higher courts of Victoria sentenced 377 offenders where trafficking in a non-commercial quantity of a drug of dependence was the principal offence. In those cases, 58.89 per cent of offenders received a sentence of imprisonment, the median length of which was 2 years and 6 months.
Turkozu referred to the discussion of current sentencing practices in Kerapa v The Queen[12] in support of his contention that, notwithstanding that his offending was a very serious example of the offence of recklessly causing injury, the sentence of 2 years’ imprisonment that was imposed on him for that offence was not at the very bottom of the available sentencing range. He submitted that the 2 year sentence for that offence should be treated as the base sentence and that a moderate level of cumulation should be ordered for the sentence that this Court imposes for the trafficking offence.
[12][2017] VSCA 56 (‘Kerapa’).
Turkozu also tendered certificates regarding courses he has recently completed while in custody and urine screen records which showed that he was drug-free.
Turkozu submitted that, having regard to the objective gravity of the trafficking offence, current sentencing practices, his guilty plea and youth, a sentence of significantly less than 3 years’ imprisonment was warranted for the trafficking offence.
Consistent with its concession that the sentence of 3 years’ imprisonment for the trafficking charge was manifestly excessive, the Crown did not cavil with the applicants’ submissions about the low level of culpability that was involved. The Crown contended that while the applicants should be sentenced to a term of imprisonment for the trafficking charge, that term should be less than 3 years.
The Crown submitted that, if the sentence to be imposed by this Court for the recklessly causing injury charge were treated as the base sentence, then substantial cumulation should be ordered for the sentences for the remaining charges to retain the existing total effective sentences for both applicants. This was said to be appropriate because the recklessly causing injury offences were very serious and represented separate and distinct offending from the trafficking offence. In addition, the Crown relied on the respective criminal history of the applicants, the fact that the current offending occurred while Nawar was on bail and Turkozu was subject to a CCO, and the need for general and specific deterrence and protection of the community.
Decision
In our opinion, the Crown’s concession that the sentences imposed for the trafficking charge were manifestly excessive was properly made. The applicants fell to be sentenced only for the small quantity of ice that was supplied to Crawford and Canavan.[13] We accept that the fact that the quantity that was supplied was a sample could not be taken into account as an aggravating factor for sentencing purposes.[14]
[13]While quantity is not determinative of the seriousness of a trafficking offence, it is a highly relevant factor and, all other things being equal, the larger the quantity, the more serious the offence. See DPP v Holder (2014) VR 467, 470 [10]; Gregory v The Queen [2017] VSCA 151, [24].
[14]Cf Mihalo v The Queen (2002) 136 A Crim R 588, 599 [56], 600 [68].
The current sentencing practices for trafficking of such a small quantity indicate that a sentence of 3 years’ imprisonment was well outside the range of sentencing options available to the judge.
We do not accept Nawar’s submission that his moral culpability in respect of the trafficking charge was lower than that of Turkozu. It is true that the transaction was organised by Turkozu alone and only he stood to profit from it. However, Nawar accompanied Turkozu to Crawford’s house knowing that the transaction would take place and for the purpose of providing armed support to Turkozu in successfully carrying out the transaction. In these circumstances, the judge was right to impose the same sentence on the applicants in respect of the trafficking charge.
Trafficking in a drug of dependence is a serious offence. This is reflected in the maximum penalty of 15 years’ imprisonment. General deterrence is a significant sentencing consideration for this offence. Specific deterrence is also relevant to both applicants in the light of their long criminal records — which include possession of drugs — and the fact that the current offending occurred while Nawar was on bail and Turkozu was subject to a CCO.
We accept that both applicants are able to rely on a range of mitigating circumstances, including their guilty pleas, relative youth, family support, remorse, promising signs of acceptance of responsibility and genuine efforts towards rehabilitation.
Having regard to the circumstances of the offending, the applicants’ personal circumstances and current sentencing practices, we are of the opinion that the appropriate sentence for each applicant for the trafficking charge is 2 years’ imprisonment.
As we have stated, it was common ground that the sentences of 2 years’ imprisonment for the recklessly causing injury charges were within range. In our opinion, those sentences were at the very bottom of that range and higher sentences were open to the judge. There is nothing in Kerapa which is inconsistent with this proposition. While the statement in that case that ‘[m]ost of the decisions show a coalescing of sentences towards 12 months’ imprisonment’[15] is relevant to sentencing insofar as it discloses current sentencing practices, it provides little practical assistance in assessing where an appropriate sentence for the current offending would fit within the available sentencing range. As the Crown did not contend that we should impose higher sentences,[16] we will reimpose those sentences and treat them as the base sentence for each applicant.
[15]Kerapa v The Queen [2017] VSCA 56 [25].
[16]This was the position adopted by the Crown in its written case. Initially, in its oral submissions, the Crown submitted that it was open to the Court to impose higher sentences for the recklessly causing injury charges. However, in the course of argument the Crown resiled from that position and reverted to the position set out in its written case.
The key issue outstanding for both applicants is the level of cumulation for the remaining charges. As the trafficking charge is common to both applicants, we will consider it first. In our opinion, substantial cumulation for the sentence of 2 years’ imprisonment is required for each applicant in order to reflect the fact that, while it was related to the events giving rise to the recklessly causing injury offences, it constituted separate and distinct offending conduct. In all the circumstances, 1 year of the sentence should be cumulated.
As Turkozu’s offending is confined to the trafficking charge and the recklessly causing injury charge, the effect of the resentencing discussed above is that he will be sentenced to a total effective sentence of 3 years’ imprisonment. We will fix a non-parole period of 2 years’ imprisonment. Our sentencing disposition in relation to Turkozu is summarised in the following table.
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence 15 years 2 years 1 year 2 Recklessly causing injury 5 years 2 years Base Total Effective Sentence: 3 years Non-Parole Period: 2 years
In relation to Nawar, we are satisfied that the individual sentences for charge 4 and summary charges 14 and 16 that were imposed by the judge, and the order that he made for cumulation of 6 months for charge 4, are appropriate. Nawar had possession of a firearm for the purpose of criminal offending, constituted by the trafficking offence.[17] This circumstance, together with the need to deter Nawar from committing further firearms offences due to his prior offences of possessing firearms, necessitated a substantial sentence and cumulation in relation to charge 4. Nawar’s total effective sentence will be 3 years and 6 months’ imprisonment. We will fix a non-parole period of 2 years and 6 months’ imprisonment. Our sentencing disposition in relation to Nawar is summarised in the following table.
[17]Where possession of a firearm is for the purpose of criminal offending, that purpose can constitute an aggravating feature of the possession offence. See Berichon v The Queen (2013) 40 VR 490, 496 [26].
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence 15 years 2 years 1 year 3 Recklessly causing injury 5 years 2 years Base 4 Possession of a firearm while a prohibited person 10 years 1 year 6 months Related Summary Charges 14 Committing an indictable offence while on bail 3 months 3 months – 16 Possession of cartridge ammunition without a permit 40 penalty units $1,000 fine – Total Effective Sentence: 3 years, 6 months Non-Parole Period: 2 years, 6 months
Nawar will also have to serve 5 months of the aggregate sentence imposed by the judge in relation to the charges that were the subject of an appeal to the County Court from the Magistrates’ Court.[18] Accordingly, his overall total effective sentence will be 3 years’ and 11 months’ imprisonment. The non-parole period of 2 years and 6 months’ imprisonment will apply to that total effective sentence.
[18]See [2]–[3] above.
Pursuant to s 6AAA of the Sentencing Act 1991, we will make the following declarations:
(a)but for Turkozu’s plea of guilty, we would have sentenced him to a total effective sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years; and
(b)but for Nawar’s plea of guilty, we would have sentenced him to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months.
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