New South Wales Court of Criminal Appeal CITATION : Regina v Mehcur [2002] NSWCCA 56 FILE NUMBER(S) : CCA 60019/02 HEARING DATE(S) : Thursday 7 March 2002 JUDGMENT DATE : 7 March 2002 PARTIES : Regina v Marcus Jan Mehcur JUDGMENT OF : Spigelman CJ at 29; Grove J at 2; Barr J at 30 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0977 LOWER COURT JUDICIAL Hosking DCJ OFFICER : COUNSEL : W.G. Dawe QC (Crown/Applicant) S.J. Odgers SC (Respondent) SOLICITORS : S.E. O'Connor (Crown) Nyman Gibson & Company (Respondent) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - CROWN APPEAL AGAINST SENTENCE - SUPPLY OF VARIETY OF DRUGS - SIGNIFICANT WEAPONRY READY FOR USE IN RESPONDENT'S HOME FROM WHICH DRUG DEALING OPERATED - OFFENCES TAKEN INTO ACCOUNT ON FORM 1 - NECESSITY TO RECOGNIZE SERIOUSNESS OF WEAPON POSSESSION AS ADJUNCT TO ILLICIT BUSINESS - TOTAL CRIMINALITY REQUIRING REFLECTION LEGISLATION CITED : s5D Criminal Appeal Act R v Kalache [2000] NSWCCA 2 CASES CITED: R v Warman [2001] NSWCCA 147 R v Morgan 1993 70 A Crim R 368 R v Barton [2001] NSWCCA 63 DECISION : CROWN APPEAL ALLOWED; RESPONDENT RESENTENCED IN THE COURT OF CRIMINAL APPEAL 60019/02 SPIGELMAN CJ GROVE J BARR J Thursday 7 March 2002 REGINA v MARCUS JAN MEHCUR Judgment 1 SPIGELMAN CJ: I will invite Grove J to give the first judgment. 2 GROVE J: This is a Crown appeal pursuant to s5D of the Criminal Appeal Act asserting the inadequacy of sentence imposed by G.S. Hosking, DCJ at Sydney District Court on 8 November 2001. 3 On that occasion the respondent appeared for sentence, having pleaded guilty to offences before a magistrate. Those offences were supplying a prohibited drug in a commercial quantity, being 519.85 grams of methylamphetamine; supplying a prohibited drug, being 1.8 grams of substance commonly referred to as ecstasy; supplying a prohibited drug, being 465.6 grams of pseudoephedrine; supplying a prohibited drug, being 5.4 grams of cocaine and, finally, possessing a prohibited firearm, being a rifle with silencer attached. 4 His Honour was also asked to take into account seven further offences on a Form 1, six of them relating to weapons and ammunition and the seventh to goods in custody, being reasonably suspected of having been stolen or unlawfully obtained. 5 Taking the matters on Form 1 into account, the respondent was sentenced on the first charge relating to the commercial quantity of methylamphetamine to imprisonment for four years and four months with a non parole period of two years and ten months. On the further four counts he was sentenced to imprisonment to be served concurrently, to terms of six months, twelve months, six months and twelve months respectively. The respondent had been in custody since his arrest on 8 February 2001 and it is observed that the fixed term sentences are now all expired. 6 The respondent was residing with his fiancée in premises at Lugarno. A statement by Detective Inspector Henness reveals that he was investigation manager of an inquiry relative to suspected drug offences being committed by one Ronald Young. In the course of that investigation warrants were obtained to intercept telephone calls made on a mobile telephone operated by Young. Those investigations led to police awareness of frequent contact between Young and the respondent. In due course, pursuant to warrant, police entered the respondent's premises on 28 February 2001. Although he was in the house, the respondent did not respond to police demand for entry and it was forced, following which the respondent was located crouched behind a bar. He attempted to flee but was restrained in the bedroom of the premises. 7 Search revealed the quantities of prohibited drugs mentioned in the charges and, in addition to the rifle and silencer mentioned in the fifth count, police located a stolen and unsecured self loading pistol, a second self loading pistol, two crossbows and 196 rounds of assorted ammunition. The rifle, which was the subject of the fifth count, was equipped with a magazine containing seven live rounds. 8 His Honour did not make a specific finding concerning the intended use of this weaponry in terms of whether the respondent had possession for defence or offence. A submission has been made to this court that no finding should be made other than that the weapons were kept for defence. For my part I find it difficult to imagine how one would find a crossbow or a rifle fitted with a silencer was exclusively for the purpose of defence. However, there was no finding by his Honour and I would leave the matter relatively neutral. 9 The learned sentencing judge found that it was clear that the respondent was "running what might be described as a drug supply business from his home" and that included in the business operation was the offer of the range of illicit products identified in the first four counts. 10 It is convenient to mention a Crown submission concerning a remark by his Honour: "I note in that respect that whatever his other wrongdoings, at least the prisoner did not deal or there is no evidence that he was dealing in heroin." 11 It was contended that his Honour fell into error in treating as a mitigating matter the absence of heroin in either somehow diminishing the objective criminality of the conduct or in strengthening the respondent's subjective case: R v Kalache [2000] NSWCCA 2. 12 I am unpersuaded that his Honour fell into that error. The remark was made in connection with evidence given by the respondent's sister in particular, that she did not think that her brother understood the seriousness of what he was doing and his Honour made explicit reference to the notoriety of the criminality of drug dealing and the fate of some people connected with it. 13 I would understand his Honour's remark, as his later remarks intimate, to imply that, although the notorious matters to which he referred might be thought in particular to apply to heroin, they applied to other drugs, including those being dealt by the respondent. 14 His Honour did take into account that there may have been some connection between an event of sexual abuse of the respondent when he was aged about fourteen and his commencement, whilst a teenager, to use drugs. Some hearsay evidence about the event was received from the respondent's fiancée, but she did not appear to be possessed of any detail and this sparse evidence was only supported by a letter to the respondent's solicitor from Westmead Sexual Assault Service, which indicated that as at about August 1997 the respondent attended counselling over a ten month period in order to address the psychological effects consequent upon his experience. 15 In favour of the respondent his Honour noted that his prior convictions, whilst serious enough in isolation, would play little part in the sentencing exercise and he expressly said that he did not find that those prior convictions, in any significant way, disqualified the respondent from leniency. I note, however, that included on the respondent's record were convictions for possessing prohibited drugs in 1996 and 2001, on each occasion a relatively small fine being imposed. 16 The principal thrusts of the Crown submissions were expressed as a failure to give sufficient weight to the offences on Form 1 when sentencing on the first count, the imposition of lenient sentences in respect of the other counts and the failure to have regard to the principle of totality, leading to overall sentences which were manifestly inadequate. 17 A written submission categorised the sentence imposed on count one as "barely adequate", but it became inadequate in that it would then fail to give any proper weight to the Form 1 offences. The latter were by no means minor offences, two of them carrying a prescribed maximum penalty of fourteen years' imprisonment, another of ten years' imprisonment and yet another of five years imprisonment. 18 It is true that it has been recognised that when offences are taken into account on a Form 1 the additional penalty will be less than would have been imposed had separate charges been prosecuted. See R v Warman [2001]NSWCCA 147 per Wood CJ at CL. This does not mean, however, that it is true to principle that there should only be little by way of additional penalty imposed when additional offences are taken into account. See R v Morgan (1993) 70 A Crim R 368; R v Barton [2001] NSWCCA 63. 19 In considering the inadequacy of sentence imposed, taking into account the firearm offences, it is important to note that, in his rejection of a submission on behalf of the respondent to the contrary, his Honour expressly found (observing the absence of contradictory evidence on behalf of the respondent) that: "the only purpose of those weapons, being weapons of that kind in the particular places that they were found, being, in some cases, loaded weapons or with usable live rounds at hand, could only have been in the prisoner's possession as an adjunct to his business." That finding has not been challenged in this appeal. 20 As I have already observed, the weaponry was the subject of the separate fifth count, as well as the offences taken into account on the Form 1. In my view, it would have seemed more logical to take into account these offences when sentencing in respect of that count rather than the first count. However, it was open to his Honour to undertake the course which he did. 21 It was submitted on behalf of the respondent that the Crown submissions, apart from the asserted error concerning the reference to the absence of heroin, really reduced to a submission that there was error in imposing concurrent sentences. The structure of the sentences does not appear to implement the requirements of Pearce v The Queen (1998) 194 CLR 610. However, it appears to me that the ultimate issue for this Court is whether the sentences imposed, however constructed, have been shown to be manifestly inadequate for the criminality involved. 22 In my view the Crown has demonstrated this. I do not consider that there are extant factors leading to the invocation of residual discretion of this Court to refrain from interfering with sentence on a Crown appeal. 23 The evidence clearly showed that the respondent was dealing in a variety of drugs and, as his Honour found, this went far beyond any support of his own use. I have not overlooked the evidence of the respondent's fiancée that both of them were, at the relevant time, taking "cannabis, speed, cocaine and ecstasy". 24 However, the Crown's contention is made out in the absence of any discernible measure of imposition in the sentence on the first count reflecting the Form 1 offences, despite his Honour's expression of intention thereto. As his Honour found, the circumstances surrounding were that the weaponry was an adjunct to the unlawful business and they were serious offences. 25 We have been supplied with the statistics kept by the Judicial Commission concerning the supply of commercial quantities of amphetamine and possession of firearms. Those separate statistics are of little use in circumstances such as the present where the essence of criminality is somewhat enhanced by the connection between the drug offence and the possession of the firearms. 26 As has been pointed out by counsel for the respondent a problem does arise in relation to the question of cumulation. I have already observed that the fixed term sentences have expired. In my view, the sentence of twelve months on the fifth count for the rifle with the silencer was, in itself, manifestly inadequate. 27 Were I returning to sentence on that matter, I would regard a sentence of something in the order of three years' imprisonment as the minimum required to properly reflect the seriousness of that offence in the circumstances. Because those sentences have now expired, it seems to me that the overall situation can best and fairly be met by simply making an adjustment to the sentence on the now only current matter concerning the first count. 28 I would adopt the approach to discount manifested by his Honour in relation to the plea of guilty and the special circumstances which he found. I would propose the following orders: that the crown appeal be allowed. that the sentence imposed on the first count of the indictment be quashed; in lieu thereof the respondent be sentenced, taking into account the matters on the Form 1, to six years and six months imprisonment, to date from 28 February 2001 and to expire on 27 August 2007. I would specify a non parole period of four years commencing on 28 February 2001. It would therefore be specified that his first date of eligibility for parole would be 27 February 2005. 29 SPIGELMAN CJ: I agree. 30 BARR J: I also agree. 31 SPIGELMAN CJ: The orders are as indicated by Grove J. ********** 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. 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