Tassis v The Queen

[2017] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Tassis v R [2017] NSWCCA 143
Hearing dates:	8 June 2017
Date of orders:	26 June 2017
Decision date:	26 June 2017
Before:	Hoeben CJ at CL at [1] Bellew J at [2] Fagan J at [33]
Decision:	Leave to appeal against sentence is refused.
Catchwords:	CRIMINAL LAW – Appeal – Sentence – Applicant convicted of firearms and drug offences – Whether sentencing discretion was constrained by the maximum penalty – Whether an inappropriately severe sentence was imposed – No error found – Leave to appeal refused
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Adzioski v R [2013] NSWCCA 69 Hayek v R [2016] NSWCCA 126 Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Category:	Principal judgment
Parties:	Dimitri Terry Tassis – Applicant Crown – Respondent
Representation:	Counsel: S Buchen – Applicant N Adams - Crown   Solicitors: Matouk Joyner – Applicant C Hyland, Solicitor for Public Prosecutions – Crown
File Number(s):	2013/35942
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 15 December 2015 Before: Hosking SC ADCJ File Number(s): 2013/35942

Judgment

1. HOEBEN CJ AT CL: I agree with Bellew J.

2. BELLEW J: On 2 March 2015 Dimitri Terry Tassis (“the applicant”) pleaded guilty in the District Court of New South Wales to the following charges:

1. possess prohibited pistol contrary to s. 7(1) of the Firearms Act 1996 (NSW) (“the Act”) (count 1);

2. possess pistol contrary to s. 7(1) of the Act (count 2);

3. supply prohibited drug contrary to ss. 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (count 3).

3. In addition, the applicant asked the sentencing judge to take into account:

1. one count of supplying a prohibited drug contained on a Form 1 (attached to count 1); and

2. three further counts of supplying a prohibited drug, along with one count of knowingly dealing with the proceeds of crime, contained on a further Form 1 (attached to count 3).

4. In respect of counts 1 and 2, the maximum penalty is imprisonment for 14 years. As at 4 February 2013, that being the date of the offending, a standard non-parole period of three years was prescribed. That was increased to four years on 21 August 2015. The maximum penalty for the offending in count 3 is imprisonment for 15 years. No standard non-parole period is prescribed for the offending in that count.

5. On 15 December 2015, the applicant was sentenced by Hosking SC ADCJ as follows:

1. count 1: a non-parole period of 2 years to date from 24 November 2015 and to expire on 23 November 2017, with an additional term of 1 year and 9 months imprisonment to expire of 23 August 2019;

2. count 2: a non-parole period of 2 years to date from 24 February 2016 and to expire on 23 February 2018 with an additional term of 1 year and 9 months imprisonment to expire on 23 November 2019;

3. count 3: a non-parole period of 14 months to date from 24 June 2017 and to expire 23 August 2018, with an additional period of 13 months imprisonment to expire on 23 September 2019.

6. The total sentence comprised a non-parole period of 2 years and 9 months to date from 24 November 2015 and to expire on 23 August 2018, with an additional term of 1 year and 3 months to expire on 23 November 2019.

7. The applicant now seeks leave to appeal against the sentences imposed in respect of counts 1 and 2 on the basis of a single ground which is discussed more fully below. He makes no complaint about the sentence imposed in respect of count 3.

The facts of the offending

8. A statement of agreed facts was tendered before the sentencing judge, on the basis of which his Honour found the facts to be as follows:

The offender is the owner/operator of a cladding and exterior business known as Coularmate Pty Limited which is situated at Moorebank. On 29 January 2013 Mr Tassis and a woman Krystal Varvatsoulis flew from Sydney to Brisbane on a commercial flight between (sic) checking into a hotel in Brisbane. They stayed in the hotel one night before checking out the following morning and taking a return flight to Sydney. While in Brisbane the offender came into possession of two unauthorised firearms being a black Czech republic CZ-75 semi-automatic self-loading pistol and a silver Ruger .357 magnum revolver and six rounds of ammunition. The offender also came into possession of approximately 14 grams of methylamphetamine.

In Brisbane the offender caused the items I have just mentioned the two weapons and the methylamphetamine to be placed within a box wrapped in happy birthday gift wrap, which was then placed inside a blue colourful gift bag. There was a second box containing items which were not unlawful.

That same morning the offender attended the Brisbane City branch of a firm Pack & Send a domestic and interstate courier company and asked for a quote to send the package to Moorebank. Later that same day the woman Varvatsoulis attended the Pack & Send Spring Hill branch. Varvatsoulis gave the manager there two gift bags which included the two weapons and the amount of methylamphetamine and she completed a consignment note writing her details as the sender and in the receiver box she wrote Dimitri Tassis, Coularmate Pty Limited with its Moorebank address.

The Pack & Send parcel was couriered by Fastway Couriers to the Sydney depot of Fastway Couriers in Olympic Park and in the days after returning to Sydney the offender Tassis contacted Pack & Send several times enquiring about the delivery status of the package inclusive of Friday 1 February 2013 when he quoted the consignment number. On 4 February 2013 police executed a search warrant upon Fastway Couriers at Sydney Olympic Park and seized the sealed package. On that same day the offender contacted the Spring Hill branch of Pack & Send to enquire about the status of the package.

The next morning just after 11am the police arrested Mr Tassis in Belmore, he was offered an opportunity to participate in an electronically recorded interview which he declined. A search warrant was that same day executed at the offender's residence in Beverley Hills and an amount of powder based tablets and capsules believed to be prohibited drugs were located along with $20,000. An analyst's certificate for the tablets located included a total of 171.4 grams of methylamphetamine in the form of brown tablets each marked with a three point crown symbol. These items were located in a TV cabinet within the lounge room of the offender's premises. Also there was 27.4 grams of amphetamine in the form of brown tablets marked with a Mitsubishi logo also located in the TV cabinet. Police found in addition 3.21 grams of cocaine, 4.7 grams of a prohibited drug NN dimethylamylamine-amphetamine, each was again contained within the TV cabinet. There was in addition (sic) zip up case containing $20,000 in Australian currency concealed within a cavity underneath the bottom drawer of a built-in wardrobe of the bedroom used by the offender Tassis and Ms Varvatsoulis.

There was (sic) second zip up case containing numerous empty small clear plastic resealable bags and what are described as miscellaneous pieces of paper found within the TV cabinet.

Police forensic ballistics experts confirmed that the self-loading pistol is a prohibited pistol within the meaning of s 4C of the Firearms Act and that the revolver is a pistol as defined within s 4(1) of the Firearms Act. Those then are the relevant facts.

The findings of the sentencing judge

9. The sentencing judge (at ROS 5) accepted the submission advanced on behalf of the applicant that his offending in counts 1 and 2 was below the mid-range of objective seriousness. The principal factors which led his Honour to reach that conclusion were that the applicant had the firearms in his possession for only a short time, and had acquired them opportunistically. At the same time, his Honour noted that when offered the opportunity to purchase them, the applicant did not appear to hesitate in doing so.

10. His Honour found (at ROS 5-6) that the primary motivation for the offending in counts 1 and 2 stemmed from the fact that the applicant was “getting paranoid fears from constantly having drugs and money in his house and he thought the guns would calm his paranoia”. He accepted that there was no evidence that the applicant intended to pass the firearms on to anybody else for criminal purposes, or that he intended to sell them himself. At the same time, his Honour observed that the applicant had parted with possession of the firearms to allow them to be sent via post, which he described as “a less safe method of transporting them”. His Honour also observed (at ROS 6) that personal protection was no excuse for the possession of firearms because of the danger that they posed.

11. In terms of the applicant’s subjective case, the sentencing judge found (at ROS 7) that apart from being a long-term drug user, the applicant was otherwise a man of good character, as evidenced by the testimonials which had been tendered on his behalf. His Honour also took into account a psychologist’s report which stated that although the applicant had been suffering from significant levels of depression and anxiety, he appeared to have been drug free since early 2014. His Honour concluded that there was no relevant causal connection between the applicant’s mental state, and his offending.

12. His Honour (at ROS 9) applied a discount of 25% to reflect the applicant’s pleas of guilty and noted the acknowledgment of senior counsel then appearing for the applicant that some accumulation of sentence was necessary. His Honour also made a finding of special circumstances before proceeding to impose the sentences set out above.

THE GROUND OF APPEAL

The learned sentencing judge erred by allowing the sentencing discretion to be constrained by the maximum penalty for the firearms offences, and thereby imposed inappropriately severe sentences in respect of counts 1 and 2.

The observations of the sentencing judge

13. His Honour (at ROS 1) noted that each of the offences in counts 1 and 2 carried a maximum penalty of 14 years imprisonment, and a standard non-parole period of 3 years imprisonment. When dealing with the objective criminality of the offending in counts 1 and 2, his Honour said (commencing at ROS 4):

In terms of the objective criminality of the firearms the offender possessed there is as I noted a standard non-parole period of three years prescribed in each case. For my own part I find that the standard non-parole period of three years, given the overall penalty of 14 years perplexing in the extreme. Indeed the Court of Criminal Appeal seems to be equally perplexed, Justice RS Hulme in a case of R v Najem (2008) NSWCCA 32 at para 38 said in part this (sic) in a similar case and dealing with this unusual penalty structure:

"Any judgment as to the appropriate penalty to be imposed in respect of the offence the subject of the second count has also to cope with the fact that there are, at least on first impression two irreconcilable standards against which that offending has to be measured."

His Honour went on to say that one looks in [vain] to the second reading speech of the Act that introduced this standard non-parole period for any explanation as to the extraordinary divergence of maximum penalty as composed to standard non-parole period. I am required by law to take into account the standard non-parole period and I have done so. I will state at once that but for the standard non-parole period Mr Tassis' sentences in relation to the two firearms charges would be higher than the ones that I intend to impose. At the risk of repetition I am required to have regard to the standard non-parole period and I have done so.

It was submitted on behalf of Mr Tassis that s 7 of the Firearms Act makes it an offence to either possess or use a firearm. It was submitted on behalf of the offender that generically speaking possession of a prohibited firearm has less objective criminality than the actual use of such a firearm. As Justice Hulme pointed out in Najem that is not necessarily so. His Honour gave the example of a situation where use can be less objectively criminal than possession of a firearm of a person who borrows a firearm from somebody who is licensed to use the firearm and shoot tin cans with it in some remote area.

14. In formulating the sentences, his Honour said (commencing at ROS 9):

My assessment of the appropriate penalties for these matters are as follows:

The prohibited pistol with the Form 1 matter, without a plea of guilty an overall sentence of five years imprisonment with a 25% discount translates to 45 months imprisonment, with a finding of special circumstances I reduce his non-parole period to 24 months.

In relation to the pistol and even allowing for the fact that he had ammunition for it in my view the sentence should be the same, that is to say it would have been five years but for his plea of guilty with a 25% discount the sentence should be 45 months with a non-parole period of 24 months, accumulated by three months on the sentence for the prohibited pistol.

In relation to the drug supply matter with all the Form 1 matters in my assessment without a plea of guilty the sentence appropriate would have been three years, the 25% discount reduces that to 27 months, applying the same ratio of non-parole period to overall term as to the prohibited weapons charges, that translates to a non-parole period of 14 months. There should be six months accumulation of sentence on the last sentence.   

Submissions of the applicant

15. Counsel for the applicant emphasised that the sentencing judge had found that both of the offences fell below the mid-range of objective seriousness, and that he had identified no aggravating factors. It was submitted that when consideration was given to the maximum penalty and the standard non-parole period (they being the two relevant legislative guide posts), the formulation of a sentence with a notional non-parole period that exceeded the standard non-parole period by a considerable margin was indicative of error.

16. It was submitted on behalf of the applicant that the sentencing judge had indicated that the starting point for the calculation of each sentence was an overall sentence of 5 years imprisonment. It was submitted that absent a finding of special circumstances, a term of imprisonment of 5 years would ordinarily result in the imposition of a non-parole period of 3 years and 9 months. It was pointed out that such a period was significantly longer than the standard non-parole period, notwithstanding the finding that the offences fell below the mid-range of objective seriousness.

17. Counsel for the applicant submitted that in these circumstances, the sentencing judge had erred in fixing a starting point of 5 years in respect of the sentences for counts 1 and 2, and that such “an unduly high starting point” was indicative of the fact that the sentencing judge had allowed the maximum penalty to constrain his sentencing discretion. It was submitted that this was confirmed by his Honour’s reference to (in the passage set out in [13] above) the fact that but for the standard non-parole period, the sentences which would have been imposed would have been higher.

18. It was submitted that the sentencing judge was obliged to formulate a sentence referable to both of the identified legislative guide posts, and that the five year starting point indicated that the maximum penalty had become the operative, or predominant, consideration, with the standard non-parole period having a reduced significance.

19. Counsel for the applicant relied on two further matters which, it was submitted, supported a conclusion that the sentencing judge had given undue weight to the maximum penalty in the sentencing exercise.

20. Firstly, it was submitted that s. 7(1) of the Act contemplated a wide range of offending, of varying degrees of seriousness, and that when the circumstances of the applicant’s offending were considered, the maximum penalty had reduced relevance. It was submitted that the maximum penalty was designed to accommodate far more serious examples of offending.

21. Secondly, it was submitted that the various aspects of the applicant’s strong subjective case were relevant to the determination of an appropriate starting point, and that the high starting point for the sentences, in the face of moderate findings as to objective seriousness, the absence of aggravating factors and the presence of mitigating factors, all pointed to the conclusion that the maximum penalty was given undue prominence in the sentencing exercise.

22. It was submitted that in all of these circumstances, error was established and that this Court should intervene and exercise the sentencing discretion afresh.

Submissions of the Crown

23. The Crown submitted that the ground upon which the applicant relied was untenable on three bases.

24. Firstly, it was submitted that the proposition that the sentencing discretion had been constrained by the maximum penalty was entirely predicated on the existence of a notional starting point which, it was submitted, reflected an error in approach.

25. Secondly, it was submitted that notwithstanding the complaint that the sentencing discretion was constrained by the maximum penalty, it was, in reality, the non-parole period that was said to be indicative of error.

26. Thirdly, it was submitted that if the applicant’s argument was taken to its logical conclusion, it would mean that in the case of the offending in counts 1 and 2, where the objective gravity was found to be below mid-range, a head sentence greater than 4 years could never be imposed because of the presence of a 3 year standard non-parole period, despite the maximum penalty being 14 years. It was submitted that such an outcome could never have been within the contemplation of the Parliament, for the simple reason that it would have the capacity to produce an absurd sentencing outcome.

CONSIDERATION

27. As pleaded, the ground upon which the applicant relies asserts that as a consequence of allowing the sentencing discretion to be constrained by the maximum penalty, “inappropriately severe” sentences were imposed in respect of counts 1 and 2. There are a number of difficulties with that proposition.

28. Firstly, focus upon the starting point before the application of the relevant discount deflects attention from the ultimate question, namely whether, in the present case, the sentences were “inappropriately severe”: Adzioski v R [2013] NSWCCA 69 at [72] per Hoeben CJ at CL.

29. Secondly, this Court has observed that it is generally neither appropriate nor helpful to adopt an assumed starting point as a basis upon which to argue that a sentence is manifestly excessive: Hayek v R [2016] NSWCCA 126 per Wilson J (with whom Bathurst CJ and Schmidt J agreed). There is no material difference, for present purposes, between asserting that a sentence is manifestly excessive on the one hand, or asserting that it is “inappropriately severe” on the other.

30. Thirdly, the real complaint made by the applicant is that insufficient weight was given to the standard non-parole period. This reflects an error in approach. The obligation of the sentencing judge was to impose a sentence which took into account all relevant factors. The legislative guide posts were two such factors. In having regard to those legislative guide posts, it was necessary that the sentencing judge not give priority to either one. The effect of the submissions advanced on behalf of the applicant was to emphasise the standard non-parole period. Such a mechanistic approach is fundamentally contrary to the instinctive synthesis which the sentencing judge was bound to, and did, apply. Moreover, careful attention must always be paid to maximum penalties: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [31]. His Honour properly took that factor, as well as the standard non-parole period, into account and no error has been demonstrated.

27. For these reasons, the ground of appeal fails.

ORDERS

32. I propose the following order:

1. Leave to appeal against sentence is refused.

33. FAGAN J: I agree with Bellew J.

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Decision last updated: 26 June 2017