R v Mucenski
[2004] NSWCCA 299
•3 September 2004
CITATION: R v Mucenski [2004] NSWCCA 299 HEARING DATE(S): 20/07/04 JUDGMENT DATE:
3 September 2004JUDGMENT OF: Wood CJ at CL at 1; Hidden J at 2; Smart AJ at 24 DECISION: Appeal allowed, sentence on charge of ongoing supply quashed: in lieu, sentenced to 4 years, 4 months, NPP 2 1/2 years, from 28.2.03 (see para 23) CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - ongoing supply of cocaine and other charges - disparity from sentence of co-offender LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Crimes (Sentencing Procedure) Act 1999CASES CITED: R v Collins [2004] NSWCCA 30
R v Hallocoglu (1992) 29 NSWLR 67PARTIES :
Anthony Mucenski (applicant)
Regina (respondent)FILE NUMBER(S): CCA 60124/04 COUNSEL: Gabrielle Bashir (applicant)
D C Frearson (respondent)SOLICITORS: A Houda (applicant)
S Kavanagh (respondent)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3102 LOWER COURT
JUDICIAL OFFICER :Maguire DCJ
60124/04
3 September 2004WOOD CJ at CL
HIDDEN J
SMART AJ
1 WOOD CJ at CL: I have read in draft form the judgment of Hidden J. I agree with the orders proposed, and with the reasons of his Honour.
2 HIDDEN J: The applicant, Anthony Mucenski, pleaded guilty in the District Court to the following charges:
- 1. Ongoing supply of a prohibited drug, cocaine: an offence under s25A of the Drug Misuse and Trafficking Act , carrying a maximum sentence of 20 years imprisonment;
- 2. Unauthorised possession of a firearm, a replica pistol: an offence under s7 of the Firearms Act , carrying a maximum sentence of imprisonment for five years.
He also asked the sentencing judge to take into account charges of possessing cannabis and possessing equipment for administering a prohibited drug on a Form 1.
3 On the first charge, taking into account the matters on the Form 1, he was sentenced to imprisonment for six years, to date from 28 February 2003, with a non-parole period of four-and-a-half years. On the second charge he was sentenced to a wholly concurrent term of imprisonment for two years with a non-parole period of eighteen months. He seeks leave to appeal against those sentences.
4 The applicant was charged with the offence of ongoing supply of cocaine jointly with his de-facto partner at the time, Tanya Lee Collins. Ms Collins also pleaded guilty and was dealt with in the same proceedings. She was sentenced to imprisonment for three years, with a non-parole period of two years and three months, to be served by way of periodic detention. A Crown appeal against that sentence was unsuccessful: R v Collins [2004] NSWCCA 30.
Facts
5 On four occasions in December 2002 the applicant supplied cocaine to an undercover police officer at locations in the south-western area of Sydney. On each occasion the officer arranged the purchase by calling a mobile phone, speaking to the applicant on two of those occasions and Ms Collins on the other two, and Ms Collins drove the applicant to the location where the transaction took place. Each of the purchases was for one hundred dollars, the amount supplied varying between 0.2g and 0.25g. The purity of the cocaine was twenty-six percent on the first occasion and ranged between forty-four percent and forty-seven percent on the other occasions.
6 Both defendants were arrested on 27 December 2002 in the car which had been used for the drug transactions. Ms Collins was found to have some bags containing 2.6g of cocaine concealed in her underwear. In the car police found the replica pistol which gave rise to the second charge against the applicant. Also found were a quantity of cannabis and a bong, giving rise to the charges on the Form 1. The applicant declined to be interviewed.
Subjective case
7 The applicant was nineteen years old at the time of the offences and is now twenty-one. His criminal record comprises convictions for possessing a prohibited drug, possessing a prohibited weapon, having custody of a knife in a public place and two charges of driving whilst suspended. All of these offences were dealt with in a Local Court in 2002 and, apart from the second charge of driving whilst suspended, resulted in the imposition of modest fines. However, for the second driving offence he was placed on a bond for eighteen months, which was current at the time of the offences which bring him before this Court.
8 The evidence before the sentencing judge established that the applicant had had a difficult upbringing, marred in his earlier years by violence meted out to him and his mother by his father, who was then an alcoholic, and by learning difficulties and bullying at school. He left school at the end of year ten. In his early teens he took to the abuse of alcohol and drugs. He was seventeen years old when he formed his relationship with Ms Collins, and they lived at his family home. At the age of eighteen he developed a gambling habit, and the offence of ongoing supply of cocaine was committed in an effort to finance that habit and his continuing drug abuse.
9 However, by the time he appeared for sentence he had taken significant steps towards his rehabilitation. He had developed a positive and supportive relationship with his father, who had defeated his own drinking problem some three years earlier. During a period of pre-sentence custody he had remained drug free and had been improving his reading, hoping to study for his Higher School Certificate. He also had the support of his older brother, who offered to provide him with employment upon his release. He expressed remorse for his offences and had pleaded guilty at the earliest opportunity. (Both he and Ms Collins had been committed for sentence in the District Court but, because the committal documents were defective, an indictment was presented in that court.)
10 His Honour said that he had taken the early pleas of guilty into account, although he did not quantify the measure of leniency which that had afforded to the applicant. His Honour also found that there was “some prospect of rehabilitation”, and had regard to the fact “that the offender acquired a drug addiction at a very young age and that that addiction was a factor in the commission of his offences”.
The application
11 In this Court the applicant was represented by Ms Bashir of counsel, who did not appear in the District Court. In written and oral submissions she raised a number of matters, but the principal focus of the oral argument was the marked disparity between the applicant’s sentence and that passed upon Ms Collins. She also was nineteen years old at the time of the offence. She had no prior convictions. She also had a disturbed upbringing, and it seems that she became emotionally dependent upon the applicant, whose family accepted her and welcomed her into their home. However, after their arrest for the ongoing supply charge she terminated the relationship, gained steady employment and generally adopted a more stable lifestyle. She also expressed remorse for the offence and, as I have said, pleaded guilty at the earliest opportunity.
12 Not surprisingly, it emerged from the whole of the evidence that the transactions the subject of the charge of ongoing supply were part of a wider pattern of drug dealing, extending over several months, in which the applicant and Ms Collins were involved. It was her case that she participated because he was verbally aggressive and threatened her with violence, although he never in fact inflicted violence upon her, and that her role was to drive him to locations where drugs were to be sold because he had lost his licence.
13 However, in oral evidence, she acknowledged that she sometimes took calls about drug deals on the mobile phone, but only because he instructed her to do so. She said that he directed her to conceal drugs in her underwear, telling her that the police would be unlikely to search her if his activities came under investigation. She also acknowledged having derived some benefit from the drug dealing, through expenditure on clothing, food and entertainment.
14 The applicant also gave evidence. He acknowledged that he had been abusive on occasions during the relationship, but denied having threatened Ms Collins. He said that she also was using drugs extensively and, indeed, that his involvement in drug dealing was to finance the abuse of both of them. She denied this, saying that she used nothing but ecstasy and then only recreationally. He also said that she had a gambling problem, but this also she denied. Generally, the effect of his evidence was that she was a more willing participant in the course of dealing than she was prepared to admit.
15 The Crown’s representative in the District Court (who also did not appear before us) submitted that the applicant and Ms Collins were equally involved in the charge of ongoing supply, and that fulltime custodial sentences should be passed upon both of them. However, his Honour accepted her evidence, concluding that she “would have remained a law abiding citizen but for the intrusion into her life of the co-offender” and that “this is his crime and … she was his tool in the execution of it.” He considered that she had a good prospect of rehabilitation and, on the whole of the evidence, found that there were exceptional circumstances justifying a disposition other than fulltime custody.
16 In its appeal against Ms Collins’ sentence the Crown challenged those favourable findings, but this Court held that they were open on the evidence. It was upon that basis that the Crown prosecutor before us approached the present application. Ms Bashir complained that, in the course of cross examination of Ms Collins by the applicant’s legal representative in the sentence proceedings, his Honour wrongly rejected a question and that this had the effect of curtailing a proper exploration of her role. This does not appear to me to be the case from my examination of the transcript but, given the view I have formed about the outcome of the application, I find it unnecessary to decide the matter.
17 Obviously, given Ms Collins’ favourable subjective case and his Honour’s findings about her role in the offence, a measure of disparity between the sentence passed upon her and that upon the applicant was called for. Nevertheless, I am persuaded that the marked difference between their sentences is such as to lead to a justifiable sense of grievance on his part. In so saying, I am mindful of his criminal record and the fact that he was on a bond at the relevant time. I am also mindful of the fact that, in practical terms, the six year sentence passed upon the applicant embraces the criminality of the offence of unlawful possession of a firearm, as well as the cannabis offences on the Form 1. However, the cannabis offences were minor and it was the applicant’s unchallenged evidence that the firearm offence related to a plastic “BB” replica pistol worth $30 to $40.
18 In my view, a sentence of six years imprisonment on the applicant and of three years, to be served by way of periodic detention, upon Ms Collins cannot be justified by the distinction between their cases. Particularly is this so given the marked degree of leniency inherent in a term of periodic detention, which this Court has long recognised: R v Hallocoglu (1992) 29 NSWLR 67, per Hunt CJ at CL at 73. Accordingly, the applicant’s sentence must be set aside and this Court should decide for itself the appropriate sentence.
19 It becomes unnecessary, then, to determine Ms Bashir’s other complaints about the sentencing process. Put shortly, it was her argument that the six year sentence was manifestly excessive and failed to afford appropriate weight to the applicant’s age, his drug addiction at the relevant time, his prospect of rehabilitation, his plea of guilty and his remorse. I would say no more than that, in the light of all those factors, the sentence was undoubtedly severe.
20 Reference has been made in these reasons to such matters of aggravation or mitigation, within the meaning of s 21A of the Crimes (Sentencing Procedure) Act, as are applicable to the case. An important aggravating feature, of course, is the fact that the applicant was subject to conditional liberty at the time of these offences. Further in mitigation, we received affidavit evidence from the applicant attesting to his continued progress towards rehabilitation. He has remained drug free, he has been furthering his general education and undergoing various behavioural courses, and he continues to look forward to employment with his brother upon his release. He deposes that he has had time to reflect upon his past life, that his outlook on life has changed for the better and that he is determined not to re-offend.
21 Taking all relevant matters into account apart from his plea of guilty and his remorse, I would sentence the applicant on the ongoing supply charge to imprisonment for five and a half years. His entitlement to leniency for his remorse must be tempered by the undoubted strength of the Crown case against him. For his plea of guilty and remorse I would reduce that sentence by 20 per cent, producing a rounded off figure of four years and four months. I would find special circumstances, warranting a departure from the usual proportion between head sentence and non-parole period, in his youth, his prospects of rehabilitation and the fact that this is his first custodial sentence. Mindful that the non-parole period must still reflect considerations of retribution and deterrence, I would fix a period of two and a half years.
22 In my view, such a sentence bears an appropriate relationship to that passed upon Ms Collins. We were not asked to re-examine the sentence on the charge of unauthorised possession of a firearm. I would confirm that sentence, which would remain wholly concurrent with the sentence on the drug charge.
23 Accordingly, I would propose the following orders:
(1) Leave to appeal is granted and the appeal is allowed.
(2) The sentence on the charge of ongoing supply of a prohibited drug is quashed. In lieu, and taking into account the matters on the Form 1, the applicant is sentenced to imprisonment for four years and four months, to date from 28 February 2003, with a non-parole period of two and a half years.
(4) The applicant will be eligible for release on parole on 28 August 2005.(3) The sentence on the charge of unauthorised possession of a firearm is confirmed.
24 SMART AJ: I agree with Hidden J.
Last Modified: 09/07/2004
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