New South Wales Court of Criminal Appeal CITATION : REGINA v. OLENIK [2002] NSWCCA 90 FILE NUMBER(S) : CCA No. 60649 of 2001 HEARING DATE(S) : Thursday 21 March 2002 JUDGMENT DATE : 21 March 2002 PARTIES : REGINA v. OLENIK, Victor Barry JUDGMENT OF : Greg James J at 1; Buddin J at 47 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0109 LOWER COURT JUDICIAL Dodd, DCJ. OFFICER : COUNSEL : Crown: G. Rowling App: In person SOLICITORS : Crown: S.E. O'Connor App: In person CATCHWORDS : Criminal law - appeal - sentence - asserted error - evidence sufficient to support findings of fact by trial judge - necessity for court to consider some other sentence warranted in law should have been passed - no error. Drugs Misuse & Trafficking Act 1985 LEGISLATION CITED : Criminal Assets Recovery Act 1990 Criminal Appeal Act 1912 Murray (CCA, unreported 19 October 1997) CASES CITED: Mehcur [2002] NSWCCA 56 Dinsdale (2000) 115 A. Crim. R. 558 Pearce (1998) 103 A. Crim. R. 372 DECISION : Leave to appeal allowed; appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60649 of 2001 GREG JAMES, J. BUDDIN, J. THURSDAY 21 MARCH 2002 REGINA v. VICTOR BARRY OLENIK Judgment 1 GREG JAMES, J: The applicant, Victor Barry Olenik, was sentenced in the District Court of New South Wales on 12 September 2001 by his Honour Judge Dodd for various crimes, of which two had been the subject of early pleas entered under s.51A of the Justices Act 1902. Those were the crimes of supply prohibited drug, viz., methylamphetamine, an offence under s.25(1) of the Drugs Misuse and Trafficking Act 1985 punishable by a maximum penalty of 15 years imprisonment or a 2,000 penalty unit fine or both, and also that of supply prohibited drug, viz., cannabis leaf, an offence under the same provision, punishable, however, by a maximum penalty of 10 years imprisonment or 2,000 penalty units fine or both. 2 At that time his Honour took into account some six charges on a Form 1, the first of which was supply prohibited drug, viz., cannabis; the second a charge of goods in custody; and the third to the sixth charges of possess prohibited weapon. On the first count to which I have referred, his Honour took into account the matters on the Form 1. On that count he sentenced the applicant to imprisonment for two years and 11 months to date from 12 September 2001, that sentence to expire on 11 August 2004. On that sentence his Honour imposed a non-parole period of 18 months to date from 12 September 2001 and expire on 11 March 2003. His Honour ordered the release of the applicant on parole at the expiration of the non-parole period. 3 On the second count, his Honour imposed a sentence of imprisonment for two years and six months to date from 12 September 2001 and to expire on 11 March 2004. It can be seen that the whole of that sentence is to be served concurrently with the sentence imposed on the first count. 4 His Honour imposed, in respect of the sentence on the second count, a non-parole period of 18 months, which non-parole period was wholly concurrent with the non-parole period on the first count. His Honour similarly ordered the release of applicant to parole at the expiration of the non-parole period. 5 Since the applicant had been arrested on 10 October but was released to bail on conditions immediately, his Honour dated the sentences from the day on which they were imposed, the applicant having been in custody during the period prior to the imposition of sentence. 6 The applicant seeks to appeal against the sentences imposed on a number of grounds set out in his Notice of Appeal. Firstly, that the court had failed adequately to assess the applicant's mitigating subjective features when imposing sentence. Second, the court had failed adequately to take into account that the offences were committed over a short period of time. Thirdly, that the court had failed to consider adequately the consequences affecting the applicant as a direct result of his involvement in the crime and adverse to him apart from the sentence that was imposed. 7 That last matter has occasioned some small difficulty on the hearing of the appeal. When submissions were being made before the trial judge, there was reference in those submissions by the Crown Prosecutor to there having been an order made under s.27 of the Criminal Assets Recovery Act 1990. Reference was made to the applicant having paid what was asserted to be a proceeds assessment order in the sum of $38,000, as well as costs in favour of the New South Wales Crime Commission. It was submitted to the trial judge that that matter was not relevant to the determination of sentence, although it did operate to explain certain references in the documentary material that had been provided to him. Those references were contained in the Probation and Parole Service report and in the report of Dr. Wendy Louise Walker, psychologist. 8 At the trial, counsel for the applicant asserted that what had happened was that the applicant had been running a number of businesses, had sold some shares, and the end product of that was that, as far as one can now ascertain, he asserted the applicant had been unable to discharge the onus of explaining the provenance of his income and assets when an application was made for a proceeds assessment order under that Act. Reference was made to a failure to pay capital gains tax. Reference in particular was made to that matter in connection with the sale of taxi plates. Before his Honour, whatever the circumstances were in which the order was made were left entirely vague. 9 Before us the applicant, who appeared for himself, produced written submissions headed "Subjective Evidence Not Fully Taken Into Account" today to supplement the two written submissions, the first of 9 January 2002 and the second of 22 January 2002, which he had filed with the registry. In the submissions provided today, he asserted that his assets were frozen by the New South Wales Crime Commission, that this appeared to be a mistake arising from some unfortunate interpretation of the provenance of insurance monies received by him. However, he asserts in those submissions it seemed to him as if he might lose his home if he could not prove where all the money "I had spent in the last six years came from". His inability to explain the source of the money he attributes to the fact that he was involved in cash industries in the past 20 years. He says in his written submissions that having voluntarily supplied the Crime Commission with his financial documentation, he found it necessary to enter into an agreement with them to pay a total of $45,000 to the Crime Commission "simply out of fear of what they could do to me". He asserts that none of that money was money made illegally, notwithstanding there was some investigation of whether he had paid the appropriate tax. 10 Understandably, the Crown was not in a position to deal with this matter when it was advanced in that fashion by the applicant, who had not given notice of reliance on this particular matter. Today's proceedings were stood down in the list to enable the Crown to consider its position. 11 On resumption, we were informed by the Crown Prosecutor of various matters which might relate to the payment that it appears conceded by the Crown was made, but it was submitted that whatever be the basis of that payment it could not sound in any substantial manner to be considered in favour of the applicant on this appeal. Reference was made in particular to the decision of the Court of Criminal Appeal in Regina v. Murray (unreported 29 October 1997), where Barr, J. categorised a payment, unfortunately not particularised as made under any particular provision of the proceeds of crime legislation, as sounding on sentence as evidence of some degree of remorse but otherwise irrelevant. 12 The applicant has sought to rely upon that matter it seems in his submissions on the basis of the payment being taken into account as part of the picture of his financial circumstances, and in particular, that it should be considered as linked, albeit remotely, to the offences, the link lying only in the fact that he has been occasioned this financial detriment notwithstanding that the moneys paid did not relate to the proceeds of the crimes charged. We are unable to ascertain the basis for that submission since it has not been possible to elicit with precision the facts concerning what the payment was made in relation to and how the monies paid came to be derived. 13 We have been urged both by the applicant and the learned Crown Prosecutor to deal with the matter having regard to the assertions made by the applicant as to the nature of the monies paid and the categorisation of them made both by the applicant and the Crown on the basis that we should consider whether in the total complex of matters to which regard should be had on sentencing, the trial judge fell into any such error in the upshot as would warrant this court interfering, having regard to its duty under s.6(3) of the Criminal Appeal Act 1912. 14 That provision only permits this court to interfere with a sentence passed by a trial judge and impose a sentence in lieu in the event that the court is of the view that having regard to the proven circumstances of the matter some other sentence is warranted in law and should have been passed, in this case some other sentence more lenient. 15 It will be necessary to consider the short facts as they were before the trial judge and to consider the applicant's subjective circumstances as they were before the trial judge in order for us to ascertain whether the matters to which the applicant now refers were before the trial judge and sufficiently assessed by him or whether they being before us in the form in which they are that might make any difference to sentence. It is not necessary, therefore, for us to have regard to the principles concerning the tender of fresh evidence on appeal. Indeed, I understand that the applicant and the Crown have taken the entirely sensible attitude, having regard to the length of the sentences and non-parole period here imposed and to the time the applicant has already spent in custody, and to the potential relevance of this material, that they would wish the matter to be dealt with as best possible on the material available to us today. 16 I turn then to the remarks on sentence of the trial judge. His Honour found the facts as set out in the document entitled "Facts Sheet" to which his attention had been directed by the Prosecutor and by counsel for the applicant. Those facts were not challenged. 17 His Honour did not set them out in detail; however, he referred to the applicant having come to police notice when he was the driver of a vehicle which left the roadway and smashed into a tree. That gave rise to one of the matters which was before his Honour; that is, that the applicant had driven negligently. The police attended the scene of the accident and found him clutching a bag, which he refused to release. Upon searching the vehicle, methylamphetamine and the cannabis the subject of one of the matters to be taken into account on the Form 1 were located in the car. 18 Subsequently, the police executed a search warrant at premises in which the applicant resided and seized a number of items, including a set of electronic scales, a large number of plastic satchels, notebooks and notepads outlining what his Honour found to be details of drug transactions, 594.5 grams of cannabis, the subject of count two, two stun guns, 22 pairs of handcuffs, and two .22 calibre rifles, the latter items some of the items to be taken into account on the Form 1. A driver's licence in the name of Barry Kinnel carrying the applicant's photograph was located in his wallet. It is apparent that that name is the applicant's surname spelt backwards. 19 His Honour noted that in the collision the applicant sustained severe injuries, and those injuries required consequential surgery and caused permanent consequential incapacities. 20 The applicant took part in an interview with police on 10 October 2000. Admissions were made, to an extent, as to the activities of the applicant in supplying the drugs, the subject of the charges, and in respect of the other offences sought to be taken into account. His counsel did not seek to rely on some of the matters asserted by the applicant in that interview, and the applicant was not called to give evidence concerning those matters. In particular, it was not sought to rely on what he had said to the effect that another person was to blame for the majority of his illegal activity. But the trial judge was prepared to accept that the applicant "essentially cooperated with the police in their enquiries". 21 The trial judge proceeded on the basis that the applicant had entered pleas of guilty at the earliest opportunity, the delay in the matter coming forward having been explained, firstly, by the extended period of convalescence from the injuries; and secondly, by reason of the matter not being reached on various occasions in court. 22 His Honour expressed the view that the applicant was entitled by reason of the early pleas to the full discount of 25% . The trial judge referred to the applicant's criminal record, which was extensive until 1971. Thereafter, there was no criminal record with the exception of a minor matter his Honour entirely understandably disregarded, until the applicant came forward for sentence on this spate of criminal activity. The trial judge expressed some difficulty in understanding why the applicant had reverted to criminal activity. He referred to the Probation and Parole Service report and a report from Dr. Wendy Louise walker, as well as various references, including from the applicant's medical practitioner. That material adverted to the family circumstances of the applicant and how he had been caring for young children who had lived with him and whom he had been supporting. He was concerned as to the fate of the children in the event he was sentenced to full time custody. 23 His Honour referred also to the applicant's gainful and industrious employment, and also to his having received considerable compensation in consequence of his having sustained personal injuries which had required a number of major operations and which appeared to his Honour to require further surgery in the future and to have the result that the applicant will be in chronic pain. 24 These matters it is clear had caused the applicant to suffer severely from depression. That depression, the injuries and the pain were confirmed by his former de facto wife. She confirmed his regard for his children. She confirmed, however, the gambling habit to which his Honour had made reference, which had occasioned the applicant considerable financial stress and affected the conduct of his businesses. The trial judge had regard, in addition, to the detail of the four total hip replacements and other injuries the applicant had sustained, to the references attesting to his honesty, trustworthiness and conscientiousness as a father; further, his willingness to deal with his gambling problem by attending Gamblers' Anonymous. His Honour further adverted to an unfortunate event in the applicant's youth which had contributed to his depression when young and which caused him, so it was said, to begin gambling. 25 There was reference in Dr. Walker's report to an aspect of the applicant's psychological history that his Honour had particular regard to. Dr. Walker referred to the applicant's compulsive collecting. I have mentioned the charge relating to the possession of prohibited weapons. One of those charges relates to possession of some 22 handcuffs. Such a charge would ordinarily be treated by the court, particularly if brought in conjunction with charges such as those here, involving possession of stun guns and rifles, as a matter of some considerable degree of seriousness in the context of the possibility these items might be an adjunct to an illicit business (see The Queen v. Mehcur [2002] NSWCCA at 56). However, Dr. Walker refers to the applicant having at one time purchased 50 toasters with a willingness to have bought more had the toasters then been on special in the context that it appeared clear to Dr. Walker and it was accepted by his Honour that there was a marked degree of compulsive behaviour. His Honour concluded that the collection of the handcuffs was an expression of this, so that it did not figure largely in the overall sentence. Dr. Walker also referred to the devastation suffered by the applicant arising from his conviction, disqualifying him from driving a taxi or running the driving school business that he had formerly conducted. 26 The applicant gave Dr. Walker an account of his involvement in the offences. It appears that his Honour did not accept that account as being an accurate and full statement of the applicant's involvement. However, his Honour did have regard to Dr. Walker's assessment of the applicant as a physically fragile man dependent on pain-killers, who had made quite an heroic change from his earlier criminal life into which, however, he had after so many years relapsed due to the imminent loss of his second wife. 27 His Honour appears to have accepted Dr. Walker's conclusion that the applicant suffers from major memory difficulties; that he may well have had a brain injury arising from accidents or a near fatal suicide; that he was sincerely remorseful, separate from being very afraid; that he is willing to undergo on going counselling which may have the potential to alleviate his suffering and may enable him to develop insight into his bizarre compulsive habit of collecting objects. 28 His Honour concluded, particularly in light of the concession made by the applicant's counsel, that exceptional circumstances such as might merit a non-custodial sentence were not present. He noted the submission that the applicant requires psychiatric treatment and that the hardship on the applicant's young family of a custodial sentence would be exceptional, but found against that submission. 29 His Honour accepted in relation to the rifles that their unlicensed possession was explicable by an oversight in failing to renew the licence. His Honour did not add any additional penalty in respect of those matters. 30 His Honour did conclude that some additional weighting of penalty was warranted in respect of the stun guns but did not reject the explanation that they had been purchased for some kind of protection as a taxi driver. His Honour did conclude that the false driver's licence and the possession of the 79.1 grams of cannabis indicated some additional weighting of penalty. His Honour did not find it necessary, nor has it been suggested here that he fell into any error in this regard, to quantify precisely the additional element of penalty. 31 His Honour examined the submission put by the Crown concerning various decisions of the Court of Criminal Appeal to which he was referred but was unable to find that those decisions offered any useful comparison of any real relevance to his decision in the instant case. He turned to the statistics kept by the Judicial Commission and concluded that in his view, having regard to the principles enunciated by this court, a term of full-time imprisonment was appropriate in respect of each offence. 32 He accepted the Crown submission that there had been a substantial degree of trafficking, evidenced by the drugs stored at the house, being weighed at the house, bagged at the house and the records kept as to supply and delivery. He noted that there was evidence the applicant had been paid on at least some occasions, but he concluded as follows:- "Taking into account those matters, I however am unable to find that you are in the worst 10, 15 or 20 percent range for such offences but rather you fall somewhere toward the upper end of the remaining range for such offences. Accordingly, it seems to me the prison term appropriate in your case for each matter, and taking into account the matters in the Form 1, exceeds in each case the maximum term possible ... and therefore either of those options are available. I note that you have not served any time in custody so far." 33 It may be that his Honour had in fact fallen into error in the way in which he had proceeded to consider the suspending of the sentence or the imposition of it by way of home detention. It has been said in this court, following Regina v. Dinsdale (2000) 115 A. Crim. R. 558 in the High Court, that it is necessary firstly to consider whether a period of imprisonment will be imposed and, if so, the extent of that period of imprisonment before turning to the question of whether or not the period of imprisonment should be suspended, but I cannot accept that his Honour proceeding in the way he did has proceeded to the detriment of the applicant. 34 His Honour found special circumstances, in particular by reason of the need for treatment and assistance and that is what caused him to impose the non-parole period that he did. He made a recommendation for the applicant to be psychiatrically assessed as a matter of urgency and that the applicant should be afforded such appropriate treatment as might be available. 35 In the applicant's submissions before us, he has submitted, firstly, that his Honour did not take into account fully the necessary subjective evidence. Secondly, that the Director of Public Prosecutions overemphasised his involvement. Thirdly, that his Honour erred in having regard to the statistics. Fourthly, that the sentences for the various drug charges were imposed as additional to each other, even though the offences were obviously not separate. And that his Honour erred in fact in finding a substantial degree of drug trafficking. 36 On an application for leave to appeal against sentence, this court is bound by the findings of fact made by the trial judge, unless it is not open to the trial judge on the evidence before him to make those findings. It appears to me that there was clearly sufficient evidence to enable his Honour to make the finding of a substantial degree of trafficking that he did. Further, it appears to me that it was plainly open to his Honour to accept the submission of the Director of Public Prosecutions as to the degree of involvement of the applicant in the commission of the offences. 37 Having regard to the structure of his Honour's sentences and the non-parole period and to the principles laid down by the High Court of Australia in Pearce v. The Queen (1998) 103 A. Crim. R. 372, I see no error in the sentences imposed by the trial judge such as is contended that is that his Honour wrongly imposed an additional term of imprisonment for the two drug offences, notwithstanding they had been committed on the same day. 38 There is nowhere in the upshot of the sentences, having regard to the way in which they overlap, where the sentences are out of accord with the overall pattern of sentencing as approved in this court. The statistics to which his Honour had regard do not disclose that there is some such disparity between the sentence imposed in this matter and other sentences imposed for similar crimes as to suggest that his Honour's sentences are so far out of accord with the sentences imposed for such crimes in the exercise of judicial discretion as to show that his Honour's judicial discretion miscarried. 39 In this regard I have had reference to the written submissions prepared by the applicant and provided to the court today and to the graphs contained therein. In particular, I note that the applicant seems to have concluded that his sentence was higher than many of the other sentences received by reference to a fixed term graph which shows 100% of the sentences imposed in that way for similar crimes to be at the upper limit of the spectrum, but that limit is shown for sentences of unknown length. 40 The applicant suggests that there is some applicable mathematical relationship to be derived from the various sentences and some assessment necessary by the trial judge placing his culpability in some mathematical relationship to the culpability detected in other matters. It has been held again and again in this court that that is not an appropriate basis on which to sentence and is not the basis upon which an appeal might be allowed. 41 Reference is made by the applicant in his submissions to his cooperation with the police and the Crime Commission and to the discount he had received. It seems to be submitted that his Honour should have allowed, having regard to such matters as early plea and contrition, and in that respect I have regard to the fact that we were informed on this appeal that he had paid the money to the Crime Commission in the vague circumstances to which I have already referred, more than the discount of 25% . The precise quantum of that discount is the matter for the discretion of the trial judge. We have been given little additional information of any utility concerning the nature of the payment. What we have been given does not persuade me that the trial judge erred adverse to the applicant in any way in the discount which he had allowed to him. 42 The other matters referred to in the submissions provided today concerning the applicant's subjective circumstances are all matters which were before the trial judge and taken into account by him. It is perfectly clear that the applicant's financial and physical circumstances are most serious. It is also entirely clear that the applicant's young family is left for a considerable period of time without proper care and support. These matters were before the trial judge. 43 The court received from the applicant's 17-year-old daughter a testimonial in favour of her father dated March 16, which reveals an entirely estimable opinion by her of her father's regard for the family and his devastation caused by his mistake, but that is a matter to which, in accordance with the law, we can only have regard if we conclude that the trial judge had fallen into error. 44 I am not persuaded that the trial judge failed to have proper regard to the subjective matters because it is clear when one has considered the detailed remarks on sentence to which I have referred, that he has adverted to all necessary matters requisite for him to consider when exercising his discretion. Indeed, when one looks at the sentence passed by the learned trial judge for the offences charged in the context of his finding as to the culpability of the applicant's conduct, one could be forgiven for considering the sentences to be entirely lenient. 45 As I have said, it is only if the court is of the view that some other sentence is warranted in law and should have been passed that the court is empowered to intervene. I can see no basis in this case on which the court should take the view that any more lenient sentence might justifiably have been passed. 46 I would therefore propose that the application for leave to appeal be granted and the appeal dismissed. 47 BUDDIN, J: I agree. 48 GREG JAMES, J: The orders of the court therefore will be as I have proposed. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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