R v Becirovic (No 2) - [2018] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BECIROVIC (NO 2)
[2018] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)
19 January 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
Consideration of sentence after outcome of appeal against conviction.
The appellant successfully appealed against his convictions on four counts of drug-related offending. He was unsuccessful in relation to two counts of possessing a firearm without a licence.
The head sentences totalled six and a half years for the drug offending and two years for the firearm offending. This resulted in a total period of imprisonment of eight and a half years, with a non-parole period of five years.
The questions to be decided are whether the sentence imposed for the firearms offences should be affirmed or a different sentence substituted; and whether a new non-parole period should be fixed..
Held (the Court), affirming the sentence and fixing a new non-parole period:
1. The sentence of two years imposed by the sentencing Judge is affirmed.
2. A non-parole period of 16 months is fixed.
The head sentence and non-parole period are to commence on 11 March 2016.
Criminal Law Consolidation Act 1935 s 354(1); Criminal Law (Sentencing) Act 1988 s 32; Firearms Act 1977 (SA) ss 11(1) and 7(b), referred to.
Ryan v The Queen (1982) 149 CLR 1; R H McL v The Queen (2000) 203 CLR 452; R v Forrest (No 2) [2016] SASCFC 91, applied.

R v BECIROVIC (NO 2)
[2018] SASCFC 3
Court of Criminal Appeal: Blue, Lovell and Hinton JJ
THE COURT:
Introduction

On 11 March 2016 the appellant, Kenan Becirovic, was convicted of:
· one count of trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the Controlled Substances Act, 1984 (SA) (the CSA) (count 1);
· two counts of trafficking in a controlled drug, contrary to s 32(3) CSA (counts 2 and 4);
· one count of being in possession of a controlled drug, contrary to s 33L CSA (count 3)[1]; and
· two counts of being in possession of a firearm without a license, contrary to s 11(1) of the Firearms Act 1977 (SA) (Firearms Act) (counts 5 and 6).
[1] A verdict returned in the alternative to the offence of trafficking in a controlled drug as permitted as permitted by s 33R CSA.
For the drug offences the appellant was sentenced to sentences totalling six and a half years as follows; on count 1, imprisonment for 5 years, on count 2, imprisonment for 12 months to be served concurrently with the sentence imposed on count 1, and on count 4, imprisonment for 18 months to be served cumulatively on the sentences imposed on counts 1 and 2. In relation to count 3 he was convicted without further penalty.
With respect to the two firearms offences, the sentencing Judge sentenced the appellant as follows:
As to the two class D firearms, one a 12 gauge pump-action shotgun found to be operative but unloaded, accompanied with seven rounds of 12 gauge ammunition, you are sentenced to serve one single term of two years imprisonment, to be served cumulatively upon the earlier sentences, as there is no provable connection between these and the drug offences.
The appellant was sentenced to a total period of imprisonment for eight and a half years. The sentencing Judge fixed a non-parole period of five years. Both the head sentence and non-parole period were to commence from 11 March 2016, the day on which the appellant was taken into custody.
Subsequently the appellant appealed against his conviction on each count. He was successful to the extent that this Court set aside the convictions for the drug offences; however the Court did not interfere with the convictions for the firearms offences.[2] This outcome engages s 354(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). It provides:
If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.
[2] R v Becirovic [2017] SASCFC 156.
The question for the Court is whether the sentence imposed for the firearms offences should be affirmed or a different sentence substituted, whether a non-parole period should be fixed and if so for what period?
Section 354(1) – the applicable principles
The origins of s 354(1) of the CLCA can be traced to s 5(1) of the Criminal Appeal Act 1907 (UK). Most States enacted equivalents in the course of enacting the common form appeal provision to be found in s 353. The High Court has never had reason to consider s 354(1), but in Ryan v The Queen[3] (Ryan) and R H McL v The Queen[4] (McL) the Court considered the Victorian equivalent, being s 569(1) of the Crimes Act 1958 (Vic).
[3] (1982) 149 CLR 1.
[4] (2000) 203 CLR 452, 462 [32].
In McL Gleeson CJ, Gaudron and Callinan JJ said:
The purpose of s 569(1) was explained by Brennan J in Ryanas follows:
When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted. If the offences are founded on the same facts, it is necessary to ensure that the appropriate penalty for the same act or omission is not imposed twice; if the offences are part of a series, the entirety of the criminal conduct of the same or similar character, rather than the several acts or omissions constituting the separate offences, may determine the appropriate overall sentence to be imposed. In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and, when custodial sentences are imposed, by ordering that they be served either concurrently or cumulatively.
On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands.
[footnote omitted]
The contention that s 569(1) is limited in application to situations where a global sentence is imposed for all counts of which the appellant was convicted at trial was rejected by the High Court.
The application of s 354(1) is three-staged:
1.First, the Full Court must conclude that the appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information. Clearly the section applies to informations containing multiple counts as permitted by s 278 CLCA.
The question whether all counts of which the appellant was convicted at trial must be subject of the appeal does not arise for consideration in the present case.[5]
[5]    See Ryan v The Queen (1982) 149 CLR 1.
2.Secondly, if it does appear to the Full Court that the appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court must determine whether to affirm the sentence imposed at trial or re-sentence.
Three points fall to be made here. First, the paradigm case in which the Court will resentence (leaving aside cases in which the sentencing Judge has relevantly utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), is when the sentencing Judge has applied the totality principle.
In McL Gleeson CJ, Gaudron and Callinan JJ said:[6]
[6] (2000) 203 CLR 452 at 464 [34].
It was argued, that, as a matter of the proper exercise of discretion, the occasion to exercise the power given by s 569(1) would ordinarily arise only when there is some connection between the convictions which are left standing and the alleged offences in respect of which convictions have been quashed such as to warrant a conclusion that the quashing of some convictions requires an alteration of the sentence imposed in respect of others. That is so. Of course, in the absence of some connection, it would not have been proper to join a number of counts in the one indictment or presentment in the first place. As the analysis of Brennan J in Ryan demonstrates, and as the facts of the present case illustrate, sufficient connection to justify an exercise of the power under s 569(1) may be found in the principle of totality. Much may depend upon the manner in which the sentencing judge has applied that principle. If the judge has followed the course recommended in the cases of Mill and Lomax, and responded to considerations of totality, not by reducing individual sentences, but by fixing individually appropriate sentences and making them wholly or partly concurrent, then no occasion to invoke s 569(1) may arise. On the other hand, if, as in the present case, a sentencing judge has given effect to considerations of totality partly by imposing individual sentences which were less than they would otherwise have been, then that is the very kind of case which may call for an exercise of the power to re-sentence under s 569(1).
In a similar vein, McHugh, Gummow and Hayne JJ said:[7]
In modern times, s 569(1) of the Act is likely to have its most frequent operation in circumstances where the sentencing judge has compressed sentences by reason of the totality principle. There would be less occasion for the Court of Appeal to exercise its powers under that sub-section if sentencing judges imposed the sentence appropriate in respect of each conviction and then gave effect to the totality principle, where that principle did require a reduction of the cumulative effect of the sentences, by making concurrent any sentence or sentences that conflicted with the totality principle.
Secondly, there is no power to set aside the sentences on the counts not affected by the appeal and remit those matters for re-sentencing. As this Court has said previously, such power would be convenient and warrants the consideration of Parliament.[8]
Thirdly, for the purposes of s 354(1), “sentence” is defined to include any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with reference to the convicted person.[9] The fixing of a non-parole period under s 32 of the Sentencing Act is an order made on, or in connection with, a conviction with reference to the convicted person and thus a sentence to which s 354 applies.[10] This being so, bearing in mind that a person convicted of a number of counts on the one information may be subject to separate sentences for each count but will only have the one non-parole period, s 354(1) can be expected to have work to do at least in relation to the non-parole period where an appeal against conviction on some counts of which the appellant was convicted, but not all, is successful.
3Thirdly, if the Court determines that it is appropriate to re-sentence, it may pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.
[7] (2000) 203 CLR 452 at 476 [75].
[8]    R v Forrest (No 2) [2016] SASCFC 91 at [8] (Kourakis CJ, Kelly and Lovell JJ).
[9]    Criminal Law Consolidation Act 1935 (SA), s 348.
[10] R v Tyler (2016) 124 SASR 412 at [58]-[59] (Blue J). A similar conclusion has been reached in Victoria; see R v Gibb [1997] 2 VR 576.
Here it is to be noted that the power to substitute a sentence that the Full Court thinks fit is a power to sentence afresh. In McL Gleeson CJ, Gaudron and Callinan JJ said:[11]
It was further submitted on behalf of the appellant that, either because, on its true construction, the provision does not authorise such a course, or, alternatively, as a matter of proper exercise of discretion, the Court of Appeal cannot, or should not, use s 569(1) for the purpose of correcting what it regards as inadequacy in the sentences imposed by a sentencing judge. This, it is said, is a process which may be undertaken, in the event of a prosecution appeal against inadequacy, under s 567A, or in the event of an appeal against severity by an offender, under s 568(1), but it is not a proper exercise to be undertaken under s 569(1). This submission must also be rejected, for reasons given by Brennan J in relation to a similar submission in Ryan. His Honour said:
“It was submitted further that it would be unjust for the Full Court of its own motion to increase a sentence in respect of a conviction against which neither the appellant nor the Crown has appealed. The sentence affirmed or substituted by the Full Court must plainly be a sentence which, after an appeal against conviction on one or more counts is allowed, is supported by the conviction or convictions which stand; it cannot be the sentence in respect of the conviction or convictions which are quashed. Given a regular joinder of the counts, there is no injustice in increasing the sentence in respect of a conviction which stands if the increase is occasioned by the setting aside of the sentence which carried the appropriate penalty for conduct which constitutes either an element of the offence or a part of the series of offences for which the appellant stands convicted. Full justice is done to an appellant when the Full Court quashes a conviction on some count or part of the indictment on which he ought not to have been convicted; it goes beyond the requirements of justice to relieve him of the appropriate penalty for conduct for which he still stands convicted. The power to affirm the sentence or to substitute another sentence under s 569(1) is not needed when there are appeals against that sentence under s 567A or s 568. Section 569(1) must have an operation additional to that for which those sections provide.”
[foonotes omitted]
[11] (2000) 203 CLR 452 at [34].
McHugh, Gummow and Hayne JJ said:[12]
… the power conferred by s 569(1) of the Act is a power to re-sentence the accused de novo. It is not a power merely to review the adequacy of the appellant's sentence following the quashing of convictions. Section s 569(1) declares that, where the section operates, the Court of Appeal may “pass such sentence in substitution therefor as it thinks proper and as may be warranted in law”. If the Court of Appeal was entitled to invoke s 569(1), it was entitled to re-sentence the appellant.
…
Section 569(1) of the Act gives the Court of Appeal the power, on its own motion, to increase sentences in cases where some convictions are quashed but other convictions on the same indictment stand. There is a clear legislative recognition that the public interest may require the remaining sentences to be increased whether or not the prosecution or, if it matters, the appellant, has appealed against those sentences. Given the apparent object of the section, the Court of Appeal must be free to impose on the appellant what it considers is the correct sentence, taking into account only those offences of which the appellant stands convicted at the time of sentencing. This is so irrespective of whether the Court of Appeal enters an acquittal or orders a new trial in respect of those charges where the convictions have been quashed. Nothing in s 569(1) indicates that the Court of Appeal must hold its hand because the appellant must face a new trial on one or more of the charges. In sentencing the appellant on the convictions that stand, the Court of Appeal is entitled to act on the basis that he is presumed innocent of the outstanding charges and to sentence him for what he has done in respect of the charges on which he stands convicted.
[12] (2000) 203 CLR 452 at [51], [70]; see also R v McMutrie (2002) 83 SASR 261.
McHugh, Gummow and Hayne JJ analysed the judgments of the members of the High Court in Ryan and, whilst determining that there was no clearly discernible ratio, concluded that a “majority of the justices support the proposition that the Court of Appeal has power under s 569(1) to increase sentences for convictions which were not quashed by the Court of Appeal but were subject of an appeal to it”.[13] Their Honours also expressed agreement with Stephen, Aickin and Brennan JJ who in Ryan considered that the power to substitute a sentence contained in s 354(1) may be exercised even though no appeal against the sentence subject of the counts in relation to which the appeal did not succeed had been instituted.[14]
[13] (2000) 203 CLR 452 at [63].
[14] (2000) 203 CLR 452 at [63].
Submissions
The Director’s primary submission is that this Court should affirm the two year sentence of imprisonment imposed for the firearms offences. It is submitted that such sentence could be considered low, but is not manifestly inadequate. The factual basis for the two year sentence was arrived at by the sentencing Judge on the basis that there was no provable connection between the firearms offences and the drug offences. Accordingly, in setting aside the convictions for the drug offences, the factual basis for the sentences imposed for the firearms offences was not undermined. Further, no modification of what was considered the appropriate sentence for the firearms offences was evidently undertaken by application of the totality principle.
The Director submits, however, that the Court should not fix a fresh non-parole period. This submission is advanced on the basis that, because the appellant is awaiting sentence on other offences and the facts and material relevant to that offending are relevant to his prospects of rehabilitation, it would be artificial to fix a non-parole period knowing of the existence of the other material but without having regard to it. Rhetorically he asks, “how does this court determine what is the minimum period in circumstances where it knows that whilst he was on bail for these offences, he is dealing with drugs and now pleading guilty to assisting someone with the interstate transport in cannabis?”
Lastly, the Director submits that the head sentence and any non-parole period imposed should be ordered to commence on 11 March 2016.
The appellant agrees with the Director’s submissions that the sentence of two years should be affirmed and no non-parole period fixed. He contends that a sentence should only be interfered with under s 354(1) where s 18A of the Sentencing Act has been invoked by the sentencing Judge or the totality principle has been applied. Neither occurred in this case. Consequently, he submits that the power to impose a different sentence is not enlivened or alternatively the discretion to do so should not be exercised. If the Court concludes to the contrary, he submits that no greater head sentence should be imposed. He relies on the following observations of Street CJ in Gilmore:[15]
It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial. …
…
The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary of this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.
In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature.
[15] (1979) 1 A Crim R 416 at 419-420.

As to any fresh non-parole period, the appellant submits that against the background of his traumatic upbringing in and escape from war torn Bosnia, he displayed qualities indicative of an ability to rehabilitate. In particular, he is intelligent and has a sound work ethic. He speaks four languages and finished secondary school in Switzerland, studying in effect in a second language.
The appellant also prays in aid the submissions made in mitigation before the trial Judge. Those submissions concentrated upon the significant adversity that the appellant and his family overcame in leaving Bosnia and ultimately coming to Australia as refugees. It was during the course of that process that the appellant managed to complete year 12 in Switzerland. Upon arriving in Australia he and his family proved themselves industrious, being successful in business. The submissions also highlighted the high regard in which many people hold the appellant, as set out in numerous references tendered, and reflected in the charitable work he has done.
The appellant in this Court also refers to three things that occurred since he has been incarcerated that give him added incentive to rehabilitate: first, he suffered a heart attack and medical advice was that he needed to exercise and change his diet, things not easily done in the prison environment. Secondly, his mother has a terminal illness and he wishes to spend time with her. Thirdly, his partner Ms Hunt has epilepsy and suffers debilitating migraines. Consequently, the appellant not being present for his family has weighed heavily with him.
Consideration
The orders made by this Court on 24 November 2017 enliven s 354(1).
The maximum penalty in relation to each of the firearms offences is a fine of $35,000 or imprisonment for seven years.[16]
[16] Firearms Act 1977 (SA), s 11(1) and (7)(b).
The firearms were a semi-automatic repeater rifle and a 12 gauge pump action shotgun. Both were in working order. They were found by police in the garden shed. In that same shed readily available was ammunition that could be used in the shotgun.
The trial Judge concluded that no link could be drawn between the firearms and the drugs. The Director submits that similarly this Court could not conclude that there was a link. Possession of the firearms as an incident of the appellant’s involvement in or association with the illicit drug trade would be an aggravating factor that must be proved beyond reasonable doubt. The Director did not attempt to do so. Complexity arises here in view of the basis upon which the convictions were upheld by the majority.
A relevant factor in considering an appropriate sentence is that the appellant has now served over 22 months of a 24 month sentence imposed by the sentencing Judge. In all of the circumstances we affirm the single sentence of two years imprisonment imposed for counts 5 and 6 utilising s 18A of the Sentencing Act.
We turn to the question of the non-parole period. It is clear that, because the Judge fixed one non-parole period in respect of four convictions that have been quashed as well as those that have been upheld, we must exercise the power contained in s 32 of the Sentencing Act afresh, including, if appropriate determining not to set a non-parole period.
We consider it appropriate to set a non-parole period. We acknowledge that the appellant has other outstanding matters that have a bearing on his prospects of rehabilitation and we do not have the benefit of all the relevant information. However, the appellant has now spent over 22 months in custody. We accept that the impact of his separation from his family weighs heavily upon him and provides incentive not to re-offend. We also accept that he now has health concerns that will serve as some disincentive to re-offend in the future. We bear in mind the passage of time that has passed since the appellant’s offending in 2013. In all the circumstances we consider a non-parole period of 16 months appropriate.
The head sentence and non-parole period are to commence on 11 March 2016.