Zarakas v R

[2013] NSWCCA 144

Court of Criminal Appeal

New South Wales

Case Title:	Zarakas v R
Medium Neutral Citation:	[2013] NSWCCA 144
Hearing Date(s):	4 February 2013
Decision Date:	19 June 2013
Before:	Latham J at [1] Button J at [2] Grove AJ at [59]
Decision:	(1) Leave to appeal out of time granted. (2) Leave to appeal granted. (3) Appeal dismissed.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - whether sentencing process offended Muldrock v The Queen - whether sentence imposed demonstrated erroneous disparity with co-offender - appeal dismissed
Legislation Cited:	Criminal Procedure Act 1986 Firearms Act 1996
Cases Cited:	Atchison v R [2012] NSWCCA 82 Dionys v R [2011] NSWCCA 272 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Ehrlich [2012] NSWCCA 38 Stewart v R [2012] NSWCCA 183 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category:	Principal judgment
Parties:	Michael Zarakas (applicant) Regina (respondent)
Representation
- Counsel:	Counsel: K Averre (applicant) R Herps (respondent)
- Solicitors:	Solicitors: Legal Aid NSW (applicant) Solicitor for Public Prosecutions (respondent)
File Number(s):	2009/192665
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Delaney DCJ
- Date of Decision:	26 November 2010
- Court File Number(s):	2009/192665

JUDGMENT

1. LATHAM J: I agree with Button J.

2. BUTTON J: On 26 November 2010, his Honour Judge Delaney sentenced the applicant in the District Court at Wollongong for a single offence of unlawfully selling three or more firearms to unauthorised purchasers over a period of 12 months. Pursuant to s 51B(1) of the Firearms Act 1996, the maximum penalty of the offence was imprisonment for 20 years. There was also an applicable standard non-parole period of 10 years.

3. His Honour imposed a head sentence of imprisonment for 9 years with a non-parole period of 5 years 6 months. Clearly, special circumstances had been found; if that had not been the case, the non-parole period would have been 6 years 9 months.

4. On the same day, his Honour had sentenced a co-offender, Mr Kafizas, for two offences. The first offence was identical to the offence to which the applicant had pleaded guilty. The second was a serious drug offence that had nothing to do with the applicant. I shall provide more detail about the sentencing of Mr Kafizas later in my judgment.

5. The applicant seeks leave to appeal, including leave to appeal out of time. The Crown does not oppose the latter leave being granted.

Objective features

1. Over a period of two months, the applicant, Mr Kafizas, and a third man, Mr Dionys, were involved in the illegal supply of a large number of firearms and a large amount of ammunition in the Wollongong area. The offences were committed for profit.

2. With regard to the offence on the indictment to which he pleaded guilty, the applicant supplied firearms on 13 separate occasions. Contained on a Form 1 pursuant to the Criminal Procedure Act 1986 were 39 other offences of unlawfully possessing firearms, selling ammunition, and not keeping firearms safely.

3. It is noteworthy that two of the firearms particularised on the indictment were light machine guns. Some of the firearms were pistols fitted with silencers.

4. An undercover operative was used to detect the offences. As a result, none of the items reached the community. Over $71,000 was handed over in return for the various items. All of the firearms were in good working order.

5. With regard to the roles played by the three offenders, his Honour found that Mr Dionys was at the top of the criminal structure. Mr Kafizas was at the bottom, and fulfilled the role of negotiator with the undercover operative. His Honour found that the applicant was "the middle man and he had a greater role to play than that of Mr Kafizas".

6. The profound objective gravity of seeking to disseminate into the community semi or fully automatic firearms for profit requires no elaboration by me: for a recent example of the approach of this Court, see Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36.

Subjective features

1. The applicant pleaded guilty at an early stage and received a discount of 25 per cent as a result. Neither party impugns that discount.

2. Born in 1966, the applicant was aged 44 years when he stood for sentence in 2010. His criminal record was not unblemished, and showed a readiness to disregard the law repeatedly with regard to driving whilst disqualified. It also featured a conviction in 2003 for possessing or using a prohibited weapon without a permit, for which the applicant was fined $250.

3. The applicant attended school until the age of 15 years, after which he became involved in a number of ventures such as the buying and selling of automobiles and the restaurant trade. He had been in a de facto relationship for five years as at the date of sentence. Prior to his incarceration, he had been a great help to his elderly and infirm mother.

4. The most noteworthy subjective feature was that, in 2002, the applicant was the victim of an armed robbery during which he had been threatened with a firearm. That traumatic incident, combined with the after-effects of the death of his father many years previously, led to him being diagnosed in 2005 with post traumatic stress disorder. The evidence demonstrated that he was continuing to suffer from psychological problems as at the date of sentence. Despite the diagnosis of post traumatic stress disorder, it was recorded that the applicant had not received effective psychological treatment.

Sentences of Mr Kafizas and Mr Dionys

1. As I have indicated, Mr Kafizas was dealt with for the same offence as the applicant, and they were co-offenders with regard to the bulk of the "sub-offences" that underpinned it. However, the offence on the indictment to which Mr Kafizas pleaded guilty encapsulated 12 sales of firearms.

2. A Form 1 contained 28 further offences to be taken into account in the sentencing of Mr Kafizas.

3. As I have noted above, Mr Kafizas was found by his Honour to occupy a lower place in the hierarchy of the criminal enterprise than the applicant.

4. Subjectively, Mr Kafizas also pleaded guilty at an early stage, and also received a discount of 25 per cent as a result. Mr Kafizas had no criminal convictions whatsoever. He was aged 59 years in November 2010. Like the applicant, he also suffered from various psychological difficulties. His Honour found that custody would be a difficult experience for a man of his age.

5. For his firearms offence, Mr Kafizas received a head sentence of imprisonment for 7 years 6 months with a non-parole period of 4 years 6 months.

6. In light of the fact that no ground of appeal is founded upon the quantum of the sentences imposed upon Mr Dionys, or any of the evidence underpinning them, I will not proceed to detail them.

Grounds of appeal

1. Two grounds were notified and maintained at the hearing. I shall deal with them in turn.

Ground one

"The sentencing judge erred in his approach to an assessment of the objective seriousness of the offending and application of the standard non-parole period."

1. It will be recalled that the sentence was imposed well before the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 was handed down.

2. The ground was founded on the following aspects of the remarks on sentence. His Honour commenced by detailing the subjective features of the applicant, including his criminal record. Thereafter, his Honour provided a summary of the objective features. His Honour then returned to subjective matters, and recounted them in a way generally favourable to the applicant.

3. His Honour then said:

   "The offender has submitted through his counsel, Mr McGill who has appeared for him on all occasions, that the offence for which he has been charged is one which is of below mid range of objective seriousness. Of course the authorities require that the Court give consideration to whether or not, where there is a standard non-parole period, where the offence falls in the level of objective seriousness."

4. Thereafter his Honour returned to the objective features, and that discussion included the finding to which I have referred that the applicant occupied a higher position in the hierarchy than Mr Kafizas.

5. His Honour then said:

   "Accordingly having referred to those circumstances of the offending I am of the opinion that the objective seriousness of this offence, as pleaded guilty to by the offender and having regard to the matters on the form 1 schedule, are above the mid range of objective seriousness. In saying that I find the offence to be slightly above the mid range of objective seriousness."

6. Thereafter, his Honour turned to the timing of the plea, and the discount that resulted from it. His Honour then turned to various subjective features, including a finding that the applicant was remorseful; that the applicant was unlikely to offend again; and that the applicant would benefit from psychological help, both in custody and upon release.

7. Thereafter his Honour said:

   "I am of the view that if this was a sentence after trial, rather than a sentence that was being dealt with after a plea of guilty, that the sentence would be a sentence of twelve years imprisonment. I reduce that by a discount of twenty-five per cent for the plea of guilty which means a starting sentence of nine years. I am of the opinion that there is evidence from the fact that this will be his first time in custody, and also from the psychological point of view that I have referred to, that this is a case where there should be a finding of special circumstances and an alteration to the ratio between the head sentence and the non-parole period imposed."

8. As I indicated, the finding of special circumstances resulted in a reduction in the non-parole period from 6 years 9 months to 5 years 6 months.

Submissions

1. Counsel for the applicant submitted that the approach of his Honour as revealed in the remarks on sentence offended against what was said in Muldrock v The Queen. He submitted that an impermissible two-stage approach to sentencing, as opposed to an instinctive synthesis, had been demonstrated.

2. He also said that this Court had found error in the remarks on sentence of his Honour with regard to Mr Dionys in Dionys v R [2011] NSWCCA 272, and that the same kind of error was established here.

3. The Crown submitted that no error had been demonstrated. He pointed to decisions of this Court that post date Muldrock v The Queen, and are to the effect that it remains appropriate for sentencing judges to assess the objective seriousness of an offence. He submitted that there was nothing in the remarks on sentence that established that there had been an overly prescriptive, two-step approach adopted by his Honour.

Determination

1. I am not satisfied that the error complained of has been demonstrated.

2. As my overview of the remarks on sentence shows, his Honour first referred to subjective matters. His Honour then referred to the objective seriousness of the offence, and made the specific finding that I have recounted above. His Honour then returned to a review of various subjective matters, about which generally favourable findings were made. It was after that review that his Honour indicated what the starting point would have been with regard to the head sentence if there had been a trial.

3. I do not consider that it was an error for his Honour to make an evaluation of the objective seriousness of the offence. There are a number of decisions of this Court that post date the decision in Muldrock v The Queen to the effect that that is not an inappropriate exercise for a sentencing judge to make an evaluation of the objective seriousness of the offence: see, for example, R v Ehrlich [2012] NSWCCA 38, Stewart v R [2012] NSWCCA 183, and Atchison v R [2012] NSWCCA 82.

4. It is not necessary for me to explore the specificity with which a sentencing judge is now called upon, after Muldrock v The Queen, to make findings with regard to the objective seriousness of an offence. But merely because a sentencing judge has assessed the objective seriousness of an offence with more specificity than may now be necessary does not of itself demonstrate error.

5. Here, it is clear from the context that I have recounted that, when his Honour indicated what the starting point (absent a plea of guilty) would have been, that starting point reflected all of the objective and subjective features to which his Honour had referred. In truth, there is no sign of an impermissible two-stage process whereby a non-parole period was considered as a starting point that reflected objective features only and rigid reference to the standard non-parole period, and thereafter reduced to reflect subjective features.

6. In short, in the remarks on sentence his Honour discussed the significant subjective and objective features; made an evaluation of the objective seriousness of the offence; indicated the discount that would be given for the utilitarian value of the early plea of guilty; indicated the starting point of the head sentence that would have been imposed, reflective of all objective and subjective features except the discount for the plea of guilty; explained the bases upon which special circumstances had been found; and thereafter imposed a head sentence that reflected the discount and a non-parole period that reflected special circumstances. Nothing in that process demonstrates error.

7. Finally, it is true that an examination of the judgments in Dionys v R shows that a ground founded on Muldrock v The Queen succeeded. It was based on the assertion that, in those completely separate remarks on sentence, his Honour had adopted a two-stage process:

   "[50] His Honour sentenced the applicant before the recent decision of the High Court in Muldrock v The Queen [2011] HCA 39, (2011) 85 ALJR 1170 in which the High Court held that R v Way [2004] NSWCCA 131; 60 NSWLR 168 had been wrongly decided. When attempting to apply the law as it had been stated in Way , his Honour said that the standard non-parole period remained as a guide even though the applicant had pleaded guilty and made a finding as to the objective seriousness of the offences by reference to the "mid range of seriousness for offences of this kind".

   [51] Given the applicant's success in relation to Ground of Appeal 1(a) and the need to re-sentence, the present application is not a suitable vehicle for a close examination of the decision of the High Court in Muldrock.

   [52] What is clear from Muldrock is that a sentencing court is not to engage in a two-step process. His Honour clearly did that on this occasion. His Honour looked at the objective seriousness of the offences and made an assessment of that basis alone and then took into account the applicant's subjective features. In Muldrock the court reiterated the point made by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 537 that all the relevant factors must be identified, both subjective and objective, and then the sentence is set.

   [53] It follows that this ground of appeal has been made out and the applicant has to be re-sentenced in respect of counts 1 and 2."

8. A number of things may be said about that decision. First, the appeal was founded upon wholly separate remarks on sentence. Secondly, the appeal was heard on 3 November 2011 and the decision handed down on 14 December 2011; that is, a little over two months after Muldrock v The Queen was handed down. At that time, the development of the jurisprudence of this Court with respect to the application of the principles in Muldrock v The Queen had only just begun. Thirdly, the analysis in that judgment predates the three examples of authorities to which I have referred to the effect that it remains appropriate for a sentencing judge to make an assessment of objective seriousness in his or her remarks on sentence. Fourthly, the analysis of that ground took place in a context of another ground having been the subject of a concession by the Crown that it should succeed, and accordingly was not determinative. Fifthly and finally, Hoeben J (as his Honour then was), with whom McClellan CJ at CL (as his Honour then was) and Adams J agreed on this aspect (Adams J delivering a separate judgment with respect to another ground) made it quite clear that that appeal was not the appropriate vehicle for a close examination of the principles in Muldrock v The Queen.

9. In all of those circumstances, I respectfully consider that the decision of this Court in Dionys v R is not determinative of this appeal.

10. As an ancillary matter, and as against the possibility that I am wrong in all of the above analysis of the ground, I indicate that, in light of the grave criminality of the applicant, I have no difficulty in determining that, even if error were to be established contrary to my approach, no lesser sentence is warranted in law.

11. It is for those reasons that I would not uphold ground one.

Ground two

"The Applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender Mr Andrew Kafizas."

1. It was submitted that a comparison of a number of aspects of the sentence imposed on Mr Kafizas and the sentence imposed upon the applicant would lead the applicant to experience a justifiable sense of grievance, and therefore that erroneous disparity is established.

2. In support of the ground, counsel for the applicant made clear that he placed no reliance upon the sentence imposed upon Mr Dionys. He also made it clear in oral submissions that he placed no reliance on the sentence imposed upon Mr Kafizas for the serious drug offence and which, as I have noted, had nothing to do with the applicant. His focus was upon the sentence imposed upon Mr Kafizas and the applicant for the firearms offence, in which they were each directly involved.

3. It will be recalled that the starting point with regard to the head sentence of the applicant was imprisonment for 12 years. The starting point with regard to the head sentence of Mr Kafizas was imprisonment for 10 years.

4. The head sentence actually imposed upon the applicant was imprisonment for 9 years. The head sentence actually imposed upon Mr Kafizas was imprisonment for 7 years 6 months.

5. The non-parole period imposed upon the applicant was 5 years 6 months. The non-parole period imposed upon Mr Kafizas was 4 years 6 months.

6. I respectfully consider that this ground can be dealt with shortly, and without reciting the submissions of the parties in detail. Nor is it necessary for me to review the well-known authorities. It suffices to say that there were five important points of distinction between the applicant and Mr Kafizas.

7. The first was that the offence in the indictment against the applicant was founded on the sale of 13 firearms. The offence in the indictment against Mr Kafizas was founded on 12 such sales.

8. The second was that the Form 1 to be taken into account with regard to the applicant contained 39 offences. The Form 1 to be taken into account with regard to Mr Kafizas contained 28 offences.

9. The third was that his Honour found that the applicant occupied a higher position in the criminal hierarchy than Mr Kafizas.

10. The fourth was that the applicant had a criminal record, and that record featured an entry for an offence to do with a prohibited weapon. Mr Kafizas had no criminal convictions whatsoever.

11. The fifth and final point of distinction was that Mr Kafizas was an older man, for whom, as I have indicated, his Honour found an extended period in custody would be a greater burden.

12. Founded upon those five points of distinction, I consider that it was well open to the discretion of his Honour to differentiate to the extent that his Honour did between the two offenders, with regard to the starting points, the head sentences actually imposed, and the non-parole periods. I consider that the five points of distinction amply justify the different results at which his Honour arrived. As a result, I do not consider that the applicant can maintain a justifiable sense of grievance when he compares any aspect of the sentence imposed upon him with the sentence imposed upon Mr Kafizas.

1. It follows that I would not uphold ground two.

Orders

1. I propose the following orders:

   (1)Leave to appeal out of time granted.

   (2)Leave to appeal granted.

   (3)Appeal dismissed.

2. GROVE AJ: I agree with Button J.

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