Diesing v R

Case [2007] NSWCCA 326

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Diesing & Ors v Regina [2007]  NSWCCA 326

FILE NUMBER(S):
2007/00003314
2007/00003187
2007/00005103
2007/00005064
2007/00003275

HEARING DATE(S):               02/08/2007

JUDGMENT DATE: 27 November 2007

PARTIES:
Martin Diesing - Applicant
Rudolph Paul Czerwinski - Applicant
Terrence John Ackland - Applicant
Luke Palin - Applicant
Peter Hamilton - Applicant
Crown - Respondent

JUDGMENT OF:       Hoeben J Latham J Harrison J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/11/0556, 05/11/0552, 05, 11/0555, 05/11/0477, 05/11/0568

LOWER COURT JUDICIAL OFFICER:     Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION:    05/09/2006

COUNSEL:
CB Craigie SC - Applicant Diesing
M Johnston - Applicant Czerwinski
M Avenell - Applicant Ackland
Ms J Manuell - Applicant Palin
Ms A Francis - Applicant Hamilton
Mr P Miller/ Ms N Adams - Crown

SOLICITORS:
SE O'Connor - Applicant Diesing
SE O'Connor - Applicant Czerwinski
SE O'Connor - Applicant Ackland
SE O'Connor - Applicant Palin
SE O'Connor - Applicant Hamilton
S Kavanagh - Solicitor for Public Prosecutions - Crown

CATCHWORDS:
Sentence appeals - Judge incorrectly believing that standard non-parole period applied to offence - error conceded - operation of proviso - evaluation by Judge of psychological reports where basis of opinions not disclosed - importance of identifying role of participants in conspiracy - failure to give effect to a finding of special circumstances - parity.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CASES CITED:
Baxter v Regina [2007] NSWCCA 237
DAC v Regina [2206] NSWCCA 265 at [9]-[10]
Elyard v Regina [2006] NSWCCA 43
Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51
R v AJP (2004) 150 A Crim R 575 at 585
R v Burgess [2006] NSWCCA 319
R v Chalmers [2007] NSWCCA 247
R v Kane [1975] VR 658
R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [10]
R v Moon (2000) 117 A Crim R 497 at 510
R v Ohar (2004) 59 NSWLR 596 at [84]
R v Reicher [2003] NSWCCA 300
R v So [2004] NSWCCA 362
R v Way (2004) 60 NSWLR 168
R v Wilkinson [2004] NSWCCA 468
Savvas v The Queen (1995) 183 CLR 1 at 7

DECISION:
Appeals allowed in all applications and new sentences imposed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/00003314; 2007/00003187; 2007/00005103; 2007/00005064; 2007/00003275

HOEBEN J
LATHAM J
HARRISON J

Tuesday 27 November 2007

Martin DIESING v REGINA
Rudolph Paul CZERWINSKI v REGINA
Terrence John ACKLAND v REGINA
Luke PALIN v REGINA
Peter HAMILTON v REGINA

Judgment

  1. THE COURT:  These applications were heard by the Court on 2 August 2007.  Because the offences are related and the applications raise similar issues, the Court has dealt with the applications in a single judgment.

  2. In order to understand the applications and the competing submissions, it is necessary to set out the background to the offences.  For ease of reference the Court has used for its factual background the offences…

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Details
AGLC
Diesing v R [2007] NSWCCA 326
Case
[2007] NSWCCA 326
Decision Date

CaseChat Overview and Summary

In Diesing v R, the applicant appealed against the severity of the sentences imposed for drug-related offences. The applicant had been found guilty of conspiracy to manufacture methylamphetamine and was sentenced to an overall term of 16 years with a non-parole period of 12 years. The applicant argued that the sentencing judge had erred in several respects, including by incorrectly applying the standard non-parole period, failing to properly consider psychological reports, and not adequately reflecting the applicant’s role in the conspiracy. The applicant also contended that the judge did not give sufficient weight to special circumstances and failed to ensure parity in sentencing.

The court addressed several issues, including whether the sentencing judge had correctly applied the non-parole period, whether the psychological reports were properly evaluated, and whether the judge had adequately considered the applicant’s role in the conspiracy. The court noted that while the sentencing judge had incorrectly applied the standard non-parole period, this error was conceded by the Crown. Regarding the psychological reports, the court found that the judge was entitled to give little weight to the reports because they lacked a basis for the conclusions drawn. The court emphasised the importance of identifying the role of participants in a conspiracy and ensuring that the sentence reflects the organisational nature of the offence.

The court concluded that the sentencing judge had erred by not giving sufficient weight to the applicant’s role in the conspiracy and by failing to adequately consider special circumstances. The court ordered that the applicant be re-sentenced in respect of one of the offences, taking into account the principles set out in R v Chalmers. The court also directed that the sentences be reviewed to ensure they were appropriate and that special circumstances were properly considered.

Orders

Orders of the court

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Background

Background to the litigation

The effect of the sentences was an overall sentence of 16 years with a non-parole period of 12 years, the applicant being eligible for release to parole on 25 May 2016. The applicant had been in custody since 26 May 2004. The applicant has appealed against the severity of those sentences.Factual background The factual background is that set out in relation to offences 1 - 4 paras [3] – [32] hereof.Remarks on sentence Having reviewed the facts and in particular the telephone intercepts, her Honour concluded that in relation to offence 2 there was insufficient evidence to establish that the applicant was a principal but that with the offenders Fumberger and Eyre he played an important part. In relation to offence 3 her Honour found that the applicant was a principal in that enterprise to make methylamphetamine and held a position above O’Grady. Her Honour was not prepared to find that he was the principal organiser. Her Honour noted that in his communications with O’Grady it was the applicant who had the capacity and knowledge to engage others and had the ability to make the manufacture go forward. Her Honour regarded as significant the fact that Czerwinski reported back to the applicant in relation to his progress in trying to produce methylamphetamine. Her Honour found that the applicant’s participation involved a deliberate course of criminal conduct undertaken for financial gain. In relation to offence 4 her Honour noted that there was no dispute that the applicant was a principal. As a result of the telephone intercepts her Honour found that although Eyre, Ackland and Czerwinski occupied important roles in the conspiracy, they reported to the applicant. Her Honour found that it was significant that it was to the applicant that Diesing mentioned that he knew who could get the job done and it was to the applicant that he complained that the hypo-phosphorous was not producing the same quantities as it had before. It was to the applicant that Palin offered the pseudoephedrine. Her Honour was satisfied that the applicant was at the top of the hierarchy in relation to this offence although Czerwinski, Ackland and Diesing occupied roles of importance. Her Honour concluded that the offence involved a deliberate and planned course of criminal conduct which engaged a number of people over two states and that it was conducted for financial gain and on a considerable scale. In relation to the applicant’s subjective case her Honour noted that the applicant was born on 22 March 1969. He had a criminal record extending from 1987, which included four offences of possessing a prohibited drug between 1994 and 2003. While her Honour declined to find that the offences for which the applicant was to be sentenced constituted a course of criminal conduct involving similar offences, she was of the opinion that his criminal record deprived him of the leniency usually associated with a first offender and a person otherwise of good character. The applicant did not give evidence on sentence. A psychological report from Mr Watson-Munroe, psychologist, was tendered which set out the applicant’s personal circumstances and family background. Her Honour was somewhat critical of this report in that it set out what the psychologist had been told by the applicant and the results of tests administered, but there was no attempt by the psychologist to evaluate what he had been told.

Evidence

Evidence Before The Court

Her Honour was entitled to give that conclusion little weight when no basis for it had been set out. This is particularly so when the asserted expression of remorse was not related in any way to the offences. Her Honour’s approach in that regard is fully consistent with Elyard v Regina [2006] NSWCCA 43.Ground 4 – The sentencing judge erred by having regard to evidence which was not admitted against the applicant in respect of count 3. The applicant submitted that in relation to offence 3, her Honour incorrectly recorded the following as part of the factual background:“On 17 December the offender told Czerwinski that there was 1200 of the pseudoephedrine. Czerwinski said they needed to find out whether it was any good and they could do something with it if it were good.” The applicant submitted that it was not clear to what extent this irrelevant material had influenced her Honour in the exercise of her Honour’s sentencing discretion. Such material had the potential to affect the exercise by her Honour of her sentencing discretion. In making this submission the applicant acknowledged that having regard to the accumulation and concurrency of the individual sentences, the sentence which was passed in respect of this offence comprised 1 year fulltime custody. The Crown accepted that this material had incorrectly been placed before her Honour. The Crown submitted that the conversation did not add materially to the applicant’s overall criminality and that it was incontrovertible that the conspiracy in respect of this offence was continuing at that time. The Court agrees with the Crown submission. Given the complexity of the facts surrounding this offence, this incorrect factual notation would have had minimal effect on her Honour’s reasoning process. No basis for intervention by the Court has been established.Re-sentencing The applicant has to be re-sentenced in respect of offence 4. The principles applicable to sentencing for a conspiracy have recently been re-visited by this Court in R v Chalmers [2007] NSWCCA 247. Simpson J (with whom the Chief Justice and Harrison J agreed) emphasised the importance of reflecting the organisational nature of a conspiracy in sentencing, rather than confining the sentencing discretion to the identification of the role of an offender by reference solely to the physical acts undertaken by that offender. Simpson J said at [83]:-Identifying the “role” of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the “role” of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy – the agreement to participate in an organised criminal activity. That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see 2 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [10].

Decision

Reasons for decision

HOEBEN J

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN J

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