Sinkovich v R

[2014] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Sinkovich v R [2014] NSWCCA 97

Hearing dates:

5 May 2014

Decision date:

27 May 2014

Before:

Basten JA at [1];
Fullerton J at [6];
R A Hulme J at [7]

Decision:

Allow the appeal.

In respect of the sentences imposed in the District Court on 6 November 2009 maintain that which was imposed for count 1 but quash that which was imposed for count 2.

In lieu, sentence the appellant in respect of count 2 to imprisonment comprising a non-parole period of 7 years and 6 months and a balance of the term of the sentence of 3 years and 6 months. The sentence will date from 4 July 2009; the appellant will become eligible for release on parole upon the expiration of the non-parole period on 3 January 2017; and the total term of the sentence will expire on 3 July 2020.

Catchwords:

CRIMINAL LAW - appeal against sentence - referral pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - sentence "towards the upper end of the range" - new affidavit material does not alter subjective case - lesser sentence warranted if standard non-parole period not given determinative significance - appeal allowed and new sentence imposed

Legislation Cited:

Crimes (Appeal and Review Act) 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

AB v R [2013] NSWCCA 273
Filippou v R [2013] NSWCCA 92
Koh v R [2013] NSWCCA 287
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Sinkovich v R [2011] NSWCCA 90

Category:

Principal judgment

Parties:

Frank John Sinkovich (Appellant)
Regina (Respondent)

Representation:

Counsel:
Mr D Barrow (Appellant)
Mr R Herps (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s):

2009/915

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2009-11-06 00:00:00

Before:

Conlon SC DCJ

File Number(s):

2009/11/0218

Judgment

1. BASTEN JA: The background and circumstances of this case sufficiently appear from the judgment of R A Hulme J. There are three factors which lead me to conclude that a lesser sentence is warranted.

1. First, whilst the categorisation of the objective seriousness of the offending as "slightly above the midrange" for that offence may be accepted, it is infected with the inevitable imprecision of such terminology. Thus, that phraseology may be apt to describe an offence which is above "the mid-range" narrowly defined, but within "the middle of the range of objective seriousness" more broadly defined. How the trial judge (Conlon DCJ) intended it is not known, although the use of the term "midrange" might indicate the narrower approach.

1. Secondly, because the standard non-parole period is a guidepost without specific or determinative consequences, it is appropriate to consider how it relates to the maximum penalty, being another relevant guidepost. It has been commented upon over several years that there is no clear pattern between the standard non-parole periods and maximum penalties identified in the table following s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). Thus, applying the relationship between non-parole period and balance of term identified in s 44(2), the standard non-parole period of 10 years would be accompanied (absent special circumstances) by a balance of term not exceeding three years four months. Such a sentence would be two-thirds of the maximum penalty available. If the offence were thought not to merit a sentence which involved such a high proportion of the maximum penalty available, the weight to be given to the standard non-parole period should be diminished. In the present case, that factor was of significance: the applicant was facing his first period of incarceration and a criminal record involving only fines, the most recent of which pre-dated the present offending by more than 30 years.

1. Thirdly, the trial judge, noting that the applicant was 54 years of age and would be serving his first custodial sentence, made a finding of special circumstances permitting him to exceed the statutory proportion of the non-parole period specified in s 44(2) of the Sentencing Procedure Act. There was no challenge to that finding. It was an appropriate one in this case.

1. Bearing in mind these considerations, and the matters referred to more generally by RA Hulme J, I agree with the orders he proposes.

1. FULLERTON J: I agree with R A Hulme J.

1. R A HULME J: This appeal arises from a referral to the Court by Latham J on 18 December 2013 pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

1. On 6 July 2009 the appellant was found guilty by a jury of two offences:

Count 1: Knowingly take part in supply of methylamphetamine at Minto on 12 June 2008

Count 2: Supply not less than commercial quantity of methylamphetamine at Minto between 29 June and 5 July 2008.

1. Count 1 is contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) for which there is prescribed a maximum penalty of imprisonment for 15 years and/or a fine of 2000 penalty units. Count 2 is an offence contrary to s 25(2) and the maximum penalty is imprisonment for 20 years and/or a fine of 3500 penalty units. The Crimes (Sentencing Procedure) Act 1999 (NSW) also prescribes a standard non-parole period in respect of the offence in count 2 of 10 years.

1. On 6 November 2009 his Honour Judge Conlon SC passed sentence as follows:

Count 1: Imprisonment for 4 years with a non-parole period of 2 years commencing 4 July 2008.

Count 2: Imprisonment for 13 years with a non-parole period of 9 years commencing 4 July 2009.

1. The total effective sentence is one of 14 years with a minimum custodial component of 10 years. The appellant will become eligible for release on parole on 3 July 2018.

Facts

1. The appellant appealed against the severity of his sentences to this Court but the appeal was dismissed: Sinkovich v R [2011] NSWCCA 90. The principal judgment was written by Hoeben J (as his Honour then was). The facts of the appellant's offences were described in his Honour's judgment at [7]-[14]. Briefly they were that on 12 June 2008 the appellant drove a co-offender, David Lowe, to a location where Lowe met with a police undercover operative and supplied to him 27.2 grams of methylamphetamine in exchange for $2700. That offence constituted count one.

1. There were subsequent supplies by Lowe to the undercover operative and negotiations for the supply of a larger amount referred to as an "elbow" (a pound of methylamphetamine). They culminated on 4 July 2008 when Lowe and another person again met with the undercover operative and supplied to him 443.8 grams of methylamphetamine in exchange for $32,000. This is the offence that constituted count two. Arrests were effected shortly after.

1. Telephone intercept material that was before the sentencing judge indicated that the appellant organised the acquisition of the drugs to on-supply to Lowe. In one of the intercepted conversations there was reference by Lowe to the appellant as being "the boss". Such material persuaded the sentencing judge that the appellant and Lowe were in the business of drug trafficking and that the appellant "was slightly above Lowe in the hierarchy".

Findings on sentence

1. The learned sentencing judge made a number of findings which merit reference at this point. His Honour found:

Lowe was substantially involved in drug trafficking and the appellant had a similar involvement.

The offence in count 1 fell within the "mid-range for offences of this type".

The offender was an integral part of the supply, allowing Lowe to conduct the actual transaction.

The offence in count 2 "falls slightly above the mid-range".

The appellant did not have any significant history of criminal offending.

He had reasonable prospects of rehabilitation although he had not shown any remorse.

Subjective circumstances

1. The appellant was aged 54 at the time of sentencing. The judge referred to him having "only a minor criminal record". He had a history of employment until he was required to cease business in order to pay costs associated with a marriage breakdown.

1. In 2003 he had become the sole carer of his four children after his wife developed a serious mental illness and the Department of Community Services removed the child from her care. At the time of the offences the appellant was receiving a parenting payment.

1. The appellant's youngest two children, who were then aged 10 and 14, were being cared for by their 21 year old sister at the time of sentence. A psychologist concluded that the appellant was suffering from a range of symptoms of an adjustment disorder with mixed anxiety and depressed mood (severe) related to his worry that he had failed his children.

1. The appellant had previously been the president of the Wollongong chapter of the Rebels Motorcycle Club but had retired some years before the offence.

Ground of appeal

1. There is a sole ground of appeal:

The sentencing judge erred in the application of the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120 with respect to count 2.

1. The Crown conceded that this ground should be upheld. It is based upon the following from the sentencing judgment:

"In respect of count 2, a standard non-parole period of ten years applies. Section 54B of the Crimes (Sentencing Procedure) Act provides that a court is to set the standard non-parole period fixed for the offence, unless the court determines there are reasons for setting a non-parole period which is either longer or shorter than the standard non-parole period. In accordance with the decision in R v Way one must ask whether reasons exist for not imposing the standard non-parole period. That question is to be answered by considering the objective seriousness for offences of the relevant kind. This assessment includes consideration of the applicable circumstances of aggravation and mitigation provided for in s 21A(2) and s 21A(3) and also having regard to the general provisions of s 21A(c) of the Crimes (Sentencing Procedure) Act."

1. The appellant contends that the above extract shows that the sentencing judge used the standard non-parole period as a starting point; adopted a two-stage approach to sentencing; and regarded the standard non-parole period as having determinative significance. These matters complied with the correct approach described in R v Way [2004] NSWCCA 131; 60 NSWLR 168. However that approach was held to be erroneous in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [25]-[28].

1. This Court was in error (it can be said with the benefit of hindsight) in effectively endorsing the correctness of the approach taken by the sentencing judge: see, for example, Sinkovich v R at [51].

1. The Crown concession that there was error is soundly based and I would uphold this ground.

Is a lesser sentence warranted: s 6(3) Criminal Appeal Act

1. There remains a question as to whether some other sentence whether more or less severe is warranted and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW).

1. It was submitted on behalf of the appellant that if he had been sentenced at first instance in accordance with the principles in Muldrock, his sentence would have been appreciably less.

1. Reference was made to statistics compiled by the Judicial Commission of New South Wales in relation to sentencing for offences against s 25(2) of the Drugs Misuse and Trafficking Act in support of a proposition that the sentence is in the top two per cent of all sentences imposed upon offenders in the period July 2006 to June 2013. There is a well recognised limitation on the utility of drawing comparisons with sentencing statistics. However, this tends to confirm the finding by this Court on the previous appeal that the sentence for the count 2 offence was "towards the upper end of the range": Sinkovich v R at [38], [62].

1. A table of other cases in which significant sentences had been imposed for an offence against s 25(2) was annexed to the written submissions for the appellant. The utility of referring to those cases is quite limited given that most of them involve sentencing for multiple offences, often with additional offences taken into account on a Form 1 document. A further difficulty arises from the fact that many of them involved pleas of guilty for which there was a reduction of sentence, commonly of 25 percent. All that I glean from these cases is that they provide some further support for the conclusion that the sentence is a comparatively heavy one.

1. The Crown contended that no lesser sentence was warranted. It sought to rely upon various matters emerging from the judgment of this Court in the earlier appeal. Some of the matters are of no assistance in that they were conclusions reached in an environment where R v Way was thought to correctly reflect the approach to sentencing in standard non-parole period cases. Matters that are legitimate to have regard to now are:

The sentencing judge found that the objective seriousness of the offence in count 2 was "slightly above mid-range". It was held by this Court that there was no error in that conclusion: Sinkovich v R at [46].

The Court described the appellant's subjective case as "relatively modest": at [50]

1. The Crown submitted that issues of deterrence, both specific and general, were of particular significance in the context of sentencing in a serious drug supply offence. So much may be readily accepted. It also submitted that the standard non-parole period "had real relevance as one of the statutory guideposts" given the finding by the sentencing judge as to the level of objective seriousness of the offence.

1. An affidavit affirmed by the appellant was read at the hearing of the appeal. It refers to various difficulties he has endured because of his inability to progress towards a minimum security classification because of the length of his sentence. He has found the conditions in maximum security to be very harsh and he has not had available to him participation in various programs because he is less needy of them than other inmates. He also speaks of the difficulties being separated from his children who have had to fend for themselves, the eldest having to look after the younger ones. Reference is also made to him having maintained his physical and mental health, having worked hard and stayed out of trouble. He says that he has received excellent work and conduct reports throughout his sentence.

1. I would not want to be thought to be downplaying the harshness of the appellant's custodial experience; that is acknowledged. But in my view the affidavit does not convey anything that was not foreseeable at the time of sentence or that the administrative arrangements in relation to classification and the like have not been ordinary incidents of the sentence imposed. Counsel accepted in the course of oral argument that the concerns the appellant had in relation to his family are "confirmatory of some of the matters that [the sentencing judge] covered".

1. There is no challenge to the findings of the sentencing judge concerning the objective seriousness of the two offences. That is particularly significant in relation to count 2 where the finding was that it was "slightly above the mid-range". The appellant's subjective case was previously described as "modest" and the new material provided in the affidavit just referred to does not alter that assessment.

1. The maximum penalty of 20 years and the standard non-parole period of 10 years in respect of the count 2 offence are the legislative guideposts that must be taken into account: Muldrock at [27]. I accept the emphasis the respondent placed upon the importance of these guideposts: see, for example, AB v R [2013] NSWCCA 273 at [87]; Koh v R [2013] NSWCCA 287 at [106]. Where an offence is found to be in the middle of the range of objective seriousness the standard non-parole period may have greater significance: Filippou v R [2013] NSWCCA 92 at [116].

1. The non-parole period imposed for the s 25(2) offence was 9 years following a finding special circumstances pursuant to s 44(2) Crimes (Sentencing Procedure) Act. Without such a finding the non-parole period would have been at least 9 years and 9 months. The standard non-parole period is 10 years. In my view that reflects an assessment of sentence that gives too much weight to the standard non-parole period. If one avoids regarding it as having primary or determinative significance, it follows that a lesser sentence is warranted.

Re-sentencing

1. The error revealed in this appeal is solely concerned with the sentence on count 2. On re-sentencing, the sentence imposed in respect of count 1 should be maintained.

1. The assessment of a new sentence for count 2 should include consideration of the unchallenged finding of the sentencing judge as to its objective seriousness; the various purposes of sentencing but particularly the need for general deterrence; and the applicant's insignificant prior record and reasonable prospects of rehabilitation.

1. I propose that there be the same degree of partial accumulation of the sentence for count 2 upon the sentence for count 1, namely 1 year.

1. The Crown said nothing in opposition to the finding of special circumstances made by the sentencing judge being maintained if the Court moved to re-sentence. What I propose will yield a non-parole component of the total effective sentence that is of the same proportion as in the original sentencing structure.

1. The new sentence I propose for count 2 is one of 11 years with a non-parole period of 7 years and 6 months. That will yield a total effective sentence of 12 years with a non-parole component of 8 years and 6 months.

Orders

1. I propose the following orders:

(1)   Allow the appeal.

(2)   In respect of the sentences imposed in the District Court on 6 November 2009 maintain that which was imposed for count 1 but quash that which was imposed for count 2.

(3)   In lieu, sentence the appellant in respect of count 2 to imprisonment comprising a non-parole period of 7 years and 6 months and a balance of the term of the sentence of 3 years and 6 months. The sentence will date from 4 July 2009; the appellant will become eligible for release on parole upon the expiration of the non-parole period on 3 January 2017; and the total term of the sentence will expire on 3 July 2020.

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Decision last updated: 28 May 2014