New South Wales Court of Criminal Appeal CITATION : Regina v Mitchell [2002] NSWCCA 270 FILE NUMBER(S) : CCA 60234/00 HEARING DATE(S) : 2 July 2002 JUDGMENT DATE : 2 July 2002 REGINA PARTIES : v NICHOLAS JOSEPH MITCHELL JUDGMENT OF : Handley JA at 1; Dowd J at 20; Smart AJ at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 99/11/0683 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : Appellant - M C Ramage QC Crown - P Power SOLICITORS : Appellant - Michael Croke & Co Crown - S E O'Connor CATCHWORDS : APPEAL ALLOWED IN PART - NO QUESTION OF PRINCIPLE Drug Misuse and Trafficking Act 1985 (NSW) LEGISLATION CITED : Firearms Act 1996 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) DECISION : Appeal allowed in part IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60234/00 DC 99/11/0683 HANDLEY JA DOWD J SMART AJ 2 July 2002 REGINA v NICHOLAS JOSEPH MITCHELL Judgment 1 Handley JA: The applicant seeks leave to appeal from sentences imposed by Gibson DCJ on 14 April 2000. He pleaded guilty to two charges, conspiracy to supply not less than a commercial quantity of heroin contrary to s 26 of the Drug Misuse and Trafficking Act, and unauthorised possession of a firearm, contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for the first offence was life imprisonment and for the second 10 years' imprisonment. 2 There were also six other offences taken into account under a Form One which his Honour said he did take into account. The applicant was sentenced to a term of 13 years' imprisonment on the first count to commence on 28 December 2000 and expire on 27 December 2013, with a non parole period of 8 years to commence at the same time and to expire on 27 December 2008. He was sentenced on the second count to a fixed term of 4 years to commence on 28 June 1999 and to expire on 27 June 2003. The applicant was taken into custody on these charges on 28 June 1999. 3 It will be apparent that his Honour made the 4 years' fixed term cumulative to the extent of 18 months with the term of imprisonment and non parole period in respect of the first count. The total head sentences amounted to 17 years. 4 Mr Ramage, who appeared for the applicant, took a number of points in support of the application for leave to appeal against the sentence. The first was that his Honour should have found special circumstances and adjusted the non parole period in respect of the first sentence. His Honour said that he did find special circumstances to a limited extent in view of the fact that the sentences were partially consecutive. In my judgment the attempt to find a ground of appeal in the Judge's failure to find special circumstances in other respects and to award a shorter non parole period cannot be accepted. Whether one applies the statutory formula in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to the total head sentences of 17 years, or to the 13 years of the sentence on the first count, or to the total time to be spent in custody of 9 1/12 years, in each case his Honour granted a greater discount than the 25 percent referred to in s 44(2). 5 I would therefore refuse to disturb the sentences because of any alleged non compliance with s 44(2), any failure on his Honour's part to find special circumstances other than those he referred to, or any failure to allow an additional mitigation of the head sentence on the first count. 6 The next submission by Mr Ramage was based on a parity argument in relation to the sentence imposed on Mr Loi, who is also seeking leave to appeal today from sentences imposed on him by Shadbolt DCJ at a later point of time. He had a second parity argument based on the sentences received by the so called middle managers in the distribution network, Zhao Qiang Wu, Djonni Dewidija and Cassino Watene. 7 In my judgment no substantial parity argument exists in respect of the sentences imposed on the middle managers, although these were significantly less than those imposed on this applicant or Mr Loi. The so called middle managers were not only lower in the business hierarchy but they pleaded guilty to lesser offences attracting a lesser maximum penalty. I would therefore reject the argument based on lack of parity in respect of those prisoners. 8 The prisoner Mr Loi received the same sentence as the applicant in respect of the drug offence of conspiracy to supply not less than a commercial quantity of heroin. Mr Loi was at the top of the hierarchy of offenders in the distribution organisation conducted by himself and the applicant but did not receive a separate sentence for a firearms offence. 9 So far as the drug offences are concerned there was little to choose between the objective criminality of the two accused, although, undoubtedly, Mr Loi was benefiting financially to a greater extent. Both were indispensable partners in the drug business they were operating. Mr Loi needed someone in the position of Mr Mitchell and Mr Mitchell needed someone in the position of Mr Loi. It may be that Mr Loi should have received a heavier sentence than he did, but no question arises in this Court of increasing that sentence and I am not persuaded that so far as the drug offences are concerned that there is any such lack of parity as would call for the intervention of this Court. I do not accept that this present applicant could really have an unjustifiable sense of grievance that he had not received a lesser sentence than Mr Loi when they were both involved fully in the distribution of this drug. Every ounce that Mr Loi handled was also handled by Mr Mitchell. 10 I turn now to the various matters which Mr Ramage suggested that his Honour had failed to take into account in sentencing this applicant. These were that his Honour failed to give sufficient weight to the plea of guilty, to the applicant's youth, to his prior good character, to his poor health and to his background and circumstances at the time of the commission of the offences. 11 The first question is whether his Honour failed to take these matters into account. His reasons for sentence make it clear that he did take each of these matters into account. He referred at the top of page 2 to the plea of guilty by the applicant and said that he was entitled to mitigation for the plea as the Crown had been saved considerable expense and it was some sign of remorse. He referred to the applicant's age at the top of page 2 and at the top of page 3. He referred to the absence of prior relevant convictions on page 3 and to his poor health, and problems with his kidneys, on page 2. He also referred to the applicant's background and circumstances, both expressly in his remarks on sentence, and in his reference to the letters by his mother and the Lutheran Pastor. It remains, however, to deal with the submission that his Honour did not sufficiently take them into account or give them sufficient weight. 12 This is essentially a matter of impression which must be decided by reference to a comparison of the objective and subjective circumstances on the one hand, and the head sentence and the non parole period on the other. 13 I have not been persuaded that his Honour's sentences in respect of the drug charge were outside the range or reflect any failure on his part to take into account the matters I have referred to. 14 It remains to consider the firearms offence. The applicant was found to have in his possession a 9mm Browning automatic pistol loaded with thirteen live rounds. There was also to be taken into account on the Form One his possession of another twenty three bullets elsewhere in his apartment, making a total of thirty six. The weapon in question is an extremely dangerous, powerful, lethal hand gun because of its calibre and because it is an automatic (statement of facts paragraph 15). It is a matter of aggravation that the pistol was loaded with thirteen live rounds. Such a weapon is obviously capable of killing or, at the very least, inflicting grievous bodily harm on more than one human being. It can be concealed on one's person and taken into the community. The maximum penalty for this offence is 10 years. The applicant was sentenced to 4 years' imprisonment, of which 2 1/2 years was made concurrent and 18 months cumulative. 15 I have been persuaded that this sentence in all the circumstances is excessive, partly because of the principle of totality and partly because it is excessive in itself. Four years for a firearms offence of this nature seems to be out of line with other sentences imposed by the higher courts and this fact leads me to the conclusion that this Court should intervene in respect of this sentence. 16 The community obviously expects that offences of this nature will not be dealt with lightly and, it seems to me, that in the circumstances, bearing in mind the sentence of imprisonment on the first count and the non parole period of 8 years, this Court should substitute a sentence of 2 years, one year of which would be cumulative on the sentence imposed in respect of the drug count. 17 This conclusion in respect of the sentence on the second count does not, in my judgment, cause any lack of parity with the sentence imposed on Mr Loi so as to give this applicant any additional ground for complaint in respect of the sentences originally passed by the learned sentencing Judge or the sentences which I am about to propose. 18 For those reasons I would grant leave to appeal and allow the appeal in part. The sentence of 4 years for unauthorised possession of a firearm imposed by the sentencing Judge is quashed and in lieu I would sentence the applicant to imprisonment to a fixed term of 2 years commencing 28 June 1999 and expiring on 27 June 2001. 19 I would dismiss the appeal against the sentence of 13 years with a non parole period of 8 years for conspiracy to supply not less than a commercial quantity of heroin but pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 I would vary the commencing date of that sentence and non parole period to 28 June 2000 with the head sentence to expire on 27 June 2013 and the non parole period on 27 June 2008, on which date the applicant would be eligible for release on parole. Those are the orders I would propose. 20 Dowd J: I agree. 21 Smart AJ: In relation to the argument as to special circumstances I would add an additional factor. If one proceeds on the basis that the effective head sentence is one of 14½ years, allowing for the accumulation and that the effective fixed term and non-parole period amount to 9½ years it can be seen that the judge has allowed for special circumstances. 22 I agree with what the presiding judge has said as to the various grounds of appeal taken in relation to the drug offence, subject to one exception. To my mind Mr Loi was very much at the top of the hierarchy and benefited far more than the applicant from the conspiracy. Mr Loi's criminality is significantly greater than that of the applicant. 23 Applying the principles of parity having regard to the sentence imposed on Mr Loi and the principle of totality and the statutory presumption of concurrency of sentences especially when they arise out of the same events, I am of the opinion that there should be an overall fixed term and non-parole period of eight years and six months. I should add that on the firearms offence the Crown accepted that the sentence was a high one. 24 I would, therefore, vary the commencement date of the sentence for the drug offence and non-parole period to 28 December 1999, with the non-parole period to expire on 27 December 2007 on which date the applicant would be eligible for release on parole. 25 Handley JA: The orders in the matter of Mitchell will be as I announced. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.