REGINA v MRISH [2000] NSWCCA 17

New South Wales Court of Criminal Appeal

CITATION : REGINA v MRISH [2000] NSWCCA 17 FILE NUMBER(S) : CCA 60364/99 HEARING DATE(S) : 08/02/00 JUDGMENT DATE : 8 February 2000

PARTIES : Regina Nabil Mrish JUDGMENT OF : Spigelman CJ at 1; Hulme J at 30; Carruthers AJ at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0990 LOWER COURT JUDICIAL Davidson DCJ OFFICER :

COUNSEL : T Game SC / M Buscombe (Applicant) D R Frearson (Crown) SOLICITORS : Xenos Jordan (Applicant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - sentencing - "exceptional circumstances" - Sentencing Act 1989, s5(2) - Firearms Act 1989, s(5) - CRIMINAL LAW - sentencing - perverting the course of justice - sentence not excessive - Crimes Act 1900, s319 Crimes Act 1900 LEGISLATION CITED : Firearms Act 1989 Sentencing Act 1989 CASES CITED: Close v R (1992) 65 ACrimR 55 R v Gray NSWCCA (unreported) 17 March 1993 DECISION : Appeal dismissed

- 9 - IN THE COURT OF CRIMINAL APPEAL 60364/99

SPIGELMAN CJ HULME J CARRUTHERS AJ

Tuesday 8 February 2000 REGINA v Nabil MRISH

JUDGMENT

1 SPIGELMAN CJ: This is an application for leave to appeal from sentences imposed upon Nabil Mrish by his Honour Judge Davidson of the District Court of New South Wales on 11 June 1999. 2 The Applicant pleaded guilty to a charge of possessing a firearm contrary to s5 of the Firearms Act 1989. The maximum penalty for that offence is ten years imprisonment. His Honour sentenced the Applicant to a fixed term of eighteen months commencing on 21 May 1999, being the last date of the trial. 3 The Applicant pleaded not guilty to two counts of intentionally perverting the course of justice, contrary to s319 of the Crimes Act 1900 (NSW). The maximum penalty for this offence is fourteen years penal servitude. The Applicant was found guilty by a jury on two separate counts. 4 Judge Davidson sentenced the Applicant to a minimum term of two years and three months from 21 May 1999 and an additional term of nine months from 21 August 2001, expiring on 20 May 2002, with respect to the first count on this second indictment. On the second count he sentenced the Applicant to a fixed term of two years from 21 May 1999, expiring on 20 May 2001. 5 On 7 February 1995 the Applicant was arrested with respect to the two charges of perverting the course of justice. During the course of the execution of a search warrant on his home on that day a firearm, together with ammunition for it, was discovered. The two counts of perverting the course of justice arose from the Applicant's conduct with respect to a charge against his brother, George Mrish. The charge was that he, together with a Henry Blunden, had murdered two persons, Mr and Mrs Dresler. 6 In March 1994 Henry Blunden died in gaol, allegedly at the hands of George Mrish, who never came to trial on that charge because, following his conviction for the murder of Mr and Mrs Dresler, George Mrish committed suicide in gaol. 7 During his period in gaol awaiting trial George Mrish met a man named Jason Smith who purported to be able to obtain firearms and confidential information, including information about the whereabouts of particular persons. After Jason Smith was released from gaol the Applicant approached him with a view to obtaining firearms and, also, obtaining addresses of certain witnesses against his brother, some of whom were in witness protection schemes. 8 Conversations between the Applicant and Jason Smith were recorded on listening devices attached to Smith. His Honour found as a fact that the Applicant was seeking the addresses for the purposes of intimidating the witnesses and that at least one of the firearms which he sought to obtain from Mr Smith was also intended by him to be used for the purposes of intimidating witnesses in the trial against his brother. The first count on the indictment for perverting the course of justice related to these events. 9 The second count of perverting the course of justice involved attempts by the Applicant to intimidate Sandra Blunden, the wife of his brother's co-accused, who was a prospective witness in his brother's trial. His Honour found as a fact that the appellant did intimidate her, first by sitting in a car and observing her house on numerous occasions; secondly, by following her when she went in her car to her girlfriend's house on one occasion and to a restaurant on another; thirdly, after she moved her home, by presenting himself at an exhibition home which was being built next door to her new home and taking a video of the premises. His Honour found that this conduct did put Sandra Blunden in fear and that the Applicant undertook this conduct with the intent to pervert the course of justice. 10 In the course of his reasons on sentence his Honour made reference to the broken period of custody which the Applicant had served prior to the trial, to the fact that the applicant was, until that point, a person without any prior conviction, to the evidence of his prior good character and to other submissions made on behalf of the Applicant, including the significance of his bail conditions over an extended period of time and the element of entrapment involved in the conduct of Mr Smith. 11 His Honour gave particular emphasis to the personal family situation of the Appellant and, in particular, the tragic history in relation to the eldest child of the marriage, which his Honour found to be: "A situation which has placed and will continue to place a serious burden on both of you in looking after and caring for that child in her affliction." 12 His Honour found that these circumstances, together with other personal aspects, constituted "exceptional circumstances" which could justify taking hardship to others into account in determining the appropriate sentence. 13 The offences of which the Applicant was convicted are serious offences and his Honour said so. In particular, the element of intimidation and threatened violence involved in the conduct leading to the conviction for perverting the course of justice constituted a substantial attack on the integrity of the criminal justice system. 14 The sentences ultimately imposed by his Honour would, by many standards, be regarded as lenient. There is no warrant, in my opinion, for any further leniency. Even if, contrary to the conclusions to which I have come, there was any basis for properly interfering with his Honour's exercise of the sentencing discretion and the discretion to be exercised again in this Court, I would not have imposed any lesser sentence than that imposed by his Honour. As his Honour said, "This was indeed a serious case of its kind". 15 One of the submissions made on behalf of the Applicant was that the sentence was excessive. Reference was made to the fact that according to the nineteen cases listed under s319 of the Crimes Act in the Judicial Commission Statistics, no offender received a minimum or fixed term of more than two years. Reliance was placed in this respect on the fact that the Appellant's minimum term of two years and three months should be understood in the context of the period in excess of fourteen months which the Applicant had served in custody prior to the trial. 16 The Judicial Commission Statistics indicate that some 16% of the limited sample were in fact sentenced to minimum fixed terms of 24 months; only three months less than the Applicant. However, those cases would, similarly, not reflect any prior custody, unless the sentence was back-dated at the time it was imposed. 17 There is no warrant on the basis of the Judicial Commission Statistics to conclude that the sentence in this particular case was excessive, let alone so excessive as would justify the interference by this Court. His stalking of Mrs Blunden was deliberate and terrifying. I would reject this ground of appeal. 18 The Applicant submitted that his Honour failed to address the question of special circumstances under s5(2) of the Sentencing Act 1989, and accordingly fell into error. It was submitted that a number of factors indicated special circumstances, including the prior custody served in broken periods, the fact that he had no prior history and the various personal family circumstances to which his Honour referred as identifying "exceptional circumstances" which justified taking into account on sentence the impact of imprisonment upon his family. 19 The first of these factors has been identified as capable of constituting special circumstances (see Close (1992) 65 ACrimR 55 at 60). I do not see that the fact that he had no prior criminal history could be so regarded. The third aspect of exceptional circumstances had already been taken into account by his Honour, expressly, in fixing, by way of reducing both the total and the minimum term. 20 In the circumstances of the case, none of the three matters, either alone or cumulatively, would justify a departure from the statutory relationship. It is most unlikely that a judge as experienced as Judge Davidson would overlook this consideration. In my opinion, nothing in the evidence indicates that the additional term should exceed one-third of the minimum term. 21 The submissions in this Court appeared to proceed on the erroneous assumption that "special circumstances" exist if there is some circumstance which would justify a lower minimum term. The statutory formula directs attention at circumstances which would justify a larger proportionate additional term. (See R v Gray, NSWCCA (unreported) 17 March 1993, per Hunt CJ at CL). 22 None of the matters pointed to, in my opinion, would do so in the present case. In any event the Court should not intervene in such a way as to reduce further the minimum term where the judge has already displayed considerable leniency in sentencing the Applicant and fixing the minimum and fixed terms. 23 The final submission was that his Honour failed to take into account in an appropriate manner the time spent in custody. It was submitted that a new concept of "an effective sentence" was to be computed in terms of adding pre-verdict custody to the sentence imposed so that the minimum term was to be computed by adding the time spent in custody to the minimum term then imposed by his Honour. 24 It was then submitted that: "It is clear from the structure of the sentences his Honour imposed that he intended that the statutory relationship between the minimum term and additional term should be maintained." 25 There is no such suggestion in his Honour's reasoning. This submission is entirely without merit or foundation. 26 On no less than four occasions in his reasons for judgment his Honour made reference to the fact that he had expressly taken into account the period in custody before conviction. This would be a reference to both the fixing of the minimum term and of the total term. His Honour said: "I also take into consideration the fact that you have already spent in broken periods a total of fifteen months and four days in custody solely in respect of these offences." (Page 8.1) "I take into consideration of course your previous custody." (Page 9.8) 27 His Honour made a reference to "a further period of incarceration ..." (page 10.9) and finally, "In imposing those sentences I have taken into consideration the fact that you have served over fourteen months in custody and I have approached the sentences on a totality basis." (Page 11.8) 28 His Honour took into account in this express way the prior custody. It affected his Honour's formulation of both the total and minimum terms. The factor cannot be related only to the minimum term. The submission based on an artificial addition of prior custody and of the minimum term as actually imposed, as a foundation for a suggestion that his Honour had inadvertently varied the statutory relationship, is devoid of merit. 29 In my opinion leave to appeal should be granted and the appeal dismissed. 30 HULME J: I agree. 31 CARRUTHERS AJ: I also agree. 32 SPIGELMAN CJ: The order of the Court is as I have indicated. **********