R v Nozuhur

Case [2013] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

R v NOZUHUR

[2013] SASCFC 81

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Nicholson)

15 August 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - POSSESSION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

The defendant pleaded guilty to two sets of offending.  On 11 April 2012, the defendant committed the offences of aggravated possessing a firearm without a licence, failing to secure a firearm, failing to secure ammunition and possessing a prescribed drug, testosterone.  The defendant was arrested and released on bail. On 6 September 2012, the defendant committed the further offences of aggravated possession of a firearm without a licence, failing to secure a firearm and supplying a controlled drug, cocaine.  The offending in September 2012 was in breach of the terms of the defendant’s bail granted in April 2012.  In respect of the April 2012 offending, the Judge imposed the one sentence of three years imprisonment.  In respect of the September 2012 offending, the Judge imposed sentences of four years imprisonment for the firearms offending and one year imprisonment for the offence of supplying a controlled drug, cocaine.  The Judge ordered that all sentences imposed be served cumulatively, leading to a total head sentence of eight years imprisonment.  A non-parole period of five years was fixed.

Whether the Judge erred in rejecting the defendant’s contention that he had severed his ties with the Finks Motorcycle Club. Whether the overall sentence imposed was manifestly excessive having regard to the defendant’s criminal antecedents and prospects of rehabilitation, the guilty pleas, and the principle of totality. Whether the Judge erred in failing to find good reason to suspend the terms of imprisonment imposed. Whether the Judge erred in failing to have regard to amendments to the Criminal Law (Sentencing) Act 1988 (SA) allowing for greater reductions in sentences on account of guilty pleas.

Held per Gray J (David J concurring): Appeal dismissed.

Held per Gray J (David J concurring): The Judge’s conclusions regarding the withdrawal of the defendant’s nomination for membership of the Finks were open on the evidence.  The evidence relied upon by the defendant as supporting his contention that he had withdrawn his nomination for membership of the Finks was equivocal, and there was evidence to the contrary.

Held per Gray J (David J concurring):  The sentences imposed by the Judge were within her discretion having regard to the types of offending.

Held per Gray J (David J concurring): The reductions made on account of the guilty pleas were generous.…

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R v Nozuhur [2013] SASCFC 81
Case
[2013] SASCFC 81
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentences imposed on the appellant for drug and firearm offences. The appellant, born in Adelaide to Iranian parents, had completed secondary schooling and obtained qualifications in health and science and real estate. He became involved with the Finks Motorcycle Club as a nominee member in early 2012. The appeal was heard by Gray, David, and Nicholson JJ of the Supreme Court of South Australia.

The legal issues before the court included whether the sentencing judge erred in rejecting the appellant's evidence of severing ties with the Finks Motorcycle Club, the appropriateness of the sentences imposed, and whether the sentences should have been suspended. Specifically, the appellant argued that the starting points for the head sentences were manifestly excessive, that insufficient discount was given for early pleas of guilty, that the totality principle was not adequately applied, and that the sentences should have been suspended. The court also considered the general principles of sentencing, including punishment, retribution, deterrence, and rehabilitation, as well as the specific policy of the *Firearms Act 1977* (SA) regarding public protection from the misuse of firearms.

Gray and David JJ found that the sentencing judge's conclusions regarding the appellant's ties to the Finks were open on the evidence and that the sentences imposed were within the judge's discretion, dismissing the appeal. They emphasised the seriousness of the offending, particularly the possession of loaded firearms while on bail, and considered general deterrence to be paramount. Nicholson J agreed with the dismissal of grounds two to five of the appeal but found the final head sentence of eight years and the non-parole period of five years to be manifestly excessive, allowing the appeal on that specific ground. The court determined that there was no proper basis to suspend the sentences, deeming immediate custodial terms appropriate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J (dissent) NICHOLSON J (dissent)
No proper basis has been established to support a finding that there was good reason to suspend the sentences. Immediate custodial terms were appropriate.Conclusion The sentences imposed by the Judge were within her sentencing discretion. No error has been established in the exercise of that discretion. I would dismiss the appeal. DAVID J: I agree with the reasons of Gray J and I would dismiss the appeal. I wish to add a few comments. There is no doubt that the sentence was a severe one. However, I am of the view that in this case it was justifiably so. The particular seriousness of this offending demanded that the sentencing Judge regard general deterrence as paramount. Her Honour obviously did so. On both occasions the appellant was in possession of a loaded pistol with attendant ammunition. As has been pointed out by Gray J, on the second occasion the appellant was on bail and he intentionally breached that order by like offending. Added to that, there was no credible explanation as to why he was in possession of these loaded pistols. The clear conclusion is that it was for a sinister and dangerous purpose. I would dismiss the appeal. I have had the benefit of reading the judgments of Gray J and David J in draft. Gray J has summarised the factual basis of the offending and the other sentencing considerations that informed the sentence arrived at by the sentencing Judge and which have also informed the decisions of Gray J and David J to dismiss the appeal. I agree in substance with much of that which their Honours have written. Nevertheless, I have come to a different decision as to the disposition of the appeal. The appellant has raised five grounds in his amended notice of appeal.[10] Grounds upon which permission to appeal is sought:1.The starting points for each of the head sentences imposed by the learned Sentencing Judge were manifestly excessive in an objective sense;2.The learned Sentencing Judge erred by finding, as a matter of fact, that rehabilitation was not a relevant consideration to sentence (see second to last paragraph, page three of sentencing remarks 03 June 2013). Therefore the sentences individually and collectively were manifestly excessive;3.Insufficient discount for the early pleas of guilty gave rise to head sentences for each offence that were also manifestly excessive;4.Failure to reduce the total sentence with regard to the totality principle resulted in an overall sentence which was also manifestly excessive;5.The sentence should have been suspended, particularly in circumstances where the prosecution conceded that it would not have been an appellable error for the learned Sentencing Judge to suspend.I would dismiss the appeal insofar as it relies on grounds two to five for the reasons given by Gray J. However, the final head sentence of eight years and the non‑parole period of five years imprisonment was manifestly excessive in all the circumstances for the reason relied on in ground one and I would allow the appeal on that ground.[10] Appeal Book p7.

Ratio Decidendi

Legal Principle Established

Established by:

As noted earlier, on the hearing of the appeal, counsel for the defendant sought to challenge the Judge’s rejection of the defendant’s evidence that he had severed his ties with the Finks. The Judge’s conclusions were plainly open on the evidence. Part of that evidence is referred to in the preceding paragraph. My review of the evidence confirms the correctness of those conclusions.Consideration of the Sentences The defendant’s parents were born in Iran and moved to Australia in 1986. The defendant was born the following year in Adelaide. The defendant moved to Queensland with his family, where his father ran a successful business. His father was away from home much of the time and his mother was responsible for the raising of the defendant and his sister. The defendant completed his schooling and was later awarded a diploma of health and science. He then obtained a real estate qualification at a TAFE Institute. He moved to live in Adelaide in 2011 where he took up residence with his sister. He intended to study law at Flinders University. At that time, his sister was undertaking a doctorate in pharmacy. In early 2012, the defendant became involved with members of the Finks Motorcycle Club and became a nominee member of the club. An appropriate sentence should address several broad objectives: the punishment of an offender; retribution to reflect society’s disapproval and rejection of the conduct in question; deterrence of the individual offender; deterrence of others; and rehabilitation and reform.[1] In different cases, these considerations impact in different ways and to different degrees. They overlap and cannot be considered in isolation. These considerations are indicators of the appropriate sentence and sometimes point in different directions. Arriving at a sentence in a particular case involves a balancing of all the matters identified in the Sentencing Act and the making of a judgement in light of all relevant matters.[2][1] R v Nemer (2003) 87 SASR 168, [6].[2] R v Nemer (2003) 87 SASR 168, [7]; Veen v The Queen (No 2) (1988) 164 CLR 465, 476. In order to arrive at an appropriate sentence, the sentencing judge had to weigh the maximum penalty fixed by Parliament, the circumstances of the offence and all the relevant matters set out in the Sentencing Act.[3][3] R v Nemer (2003) 87 SASR 168, [5]. Possession of a firearm is a privilege and a serious responsibility. The overriding policy of the Firearms Act 1977 (SA) is to protect the public from the unsafe or criminal use of firearms. As I observed in Pollitt:[4]… Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:Designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.[Footnote omitted.][4] Pollitt v Police [2007] SASC 382, [20].