New South Wales Court of Criminal Appeal CITATION: Regina v Ancuta [2005] NSWCCA 275 HEARING DATE(S): 22/07/05 JUDGMENT DATE: 17 August 2005 JUDGMENT OF: Brownie AJA at 1; Buddin J at 25; Latham J at 26 DECISION: The time for filing a notice of application for leave to appeal extended until 17 December 2004. Leave to appeal granted. Sentence imposed by the District Court quashed. In lieu thereof, sentence the applicant to imprisonment to consist of a non-parole period of five years, commencing on 27 February 2003 and expiring on 26 February 2008, and a total term of eight years, commencing on 27 February 2003 and expiring on 26 February 2011. Specify 26 February 2008 as the earliest date on which the applicant will be eligible for parole. CATCHWORDS: Sentencing - proper approach to standard non-parole period - - Sentencing - aggravating factors. Criminal Appeal Act 1912 s 10(1)(a) Drug Misuse and Trafficking Act 1985 ss 25(2), 29 LEGISLATION CITED: Crimes (Sentencing Procedure) Act [year?] ss 21A(2), 23, 44(2), 54A, 54B Criminal Assets Recovery Act 1990 CASES CITED: Regina v Way [2004] NSWCCA 13 Regina PARTIES: Ion ANCUTA FILE NUMBER(S): CCA 2004/3295 Crown: E Wilkins COUNSEL: Respondent: R Ramage QC with M Buscombe Crown: S Kavanagh (Solicitor for Public Prosecutions) SOLICITORS: Respondent: Andrews Solicitors LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0354 LOWER COURT JUDICIAL OFFICER: Delaney DCJ IN THE COURT OF CRIMINAL APPEAL 2004/3295 BROWNIE AJA BUDDIN J LATHAM J Wednesday 17 August 2005 REGINA v Ian ANCUTA Judgment 1 BROWNIE AJA: On 22 July 2005 The Court made orders allowing the appeal, quashing the sentence imposed, and substituting a new sentence, saying that reasons for judgment would be given later. These are those reasons. 2 The applicant seeks leave to appeal from a sentence imposed on 1 June 2004. He did not file a notice of application for leave to appeal until 17 December 2004, but given the questions sought to be raised on appeal, and the lack of opposition from the Crown, it is appropriate to extend the time fixed by s 10(1)(a) of the Criminal Appeal Act 1912. 3 The applicant pleaded guilty to a charge that on 27 February 2003 he was the deemed supplier of a commercial quantity of a prohibited drug, namely heroin: ss 25(2) and 29 of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for twenty years and/or a fine of $385,000. Delaney DCJ imposed a sentence of imprisonment, with a non-parole period of six years and six months, and a total period of nine years, each such period commencing from the date of the applicant's arrest, 27 February 2003. 4 On that day the applicant was detained by police whilst driving a car from Sydney to Brisbane, where he lived. A search of the car revealed the presence of 701.6 grams of heroin. The evidence established and his Honour found that the applicant had purchased that heroin from a man named Chu, for about $250,000, although the precise purchase price paid was not established. Shortly after the arrest of the applicant, the police executed a search warrant at Chu's premises, and found there some $292,000 in cash, together with various objects, suggestive of the paraphernalia of a drug dealer. His Honour found that the applicant had purchased the heroin from Chu, for resale. There was evidence of intercepted telephone conversations between the applicant and Chu, where the two men spoke in code about the then intended purchase, and evidence of police surveillance of the activities of Chu. 5 The applicant was a migrant from Romania with a poor command of English. Notwithstanding the difficulties that flowed from that, it is clear that initially he denied knowledge of the heroin in his car, and gave an untrue account concerning its presence. Later, and relatively early, he effectively admitted his involvement, and entered a plea of guilty. 6 Five grounds of appeal were taken: 1. The sentencing judge erred in his approach to Regina v Way [2004] NSWCCA 13. 2. The sentencing judge erred in finding aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act. 3. The sentencing judge failed to have regard to his finding of special circumstances when determining the non-parole period. 4. The sentence imposed was unduly harsh and severe and was manifestly oppressive. 5. The sentencing judge erred in respect to assistance provided by the applicant. Ground 1 7 Division 1A of the Crimes (Sentencing Procedure) Act contains these provisions: "54A What is the standard non-parole period? (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B Sentencing procedure (1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. (5) The failure of a court to comply with this section does not invalidate the sentence." The standard non-parole period fixed for the offence in question is ten years. 8 In his remarks on sentence the learned sentencing judge quoted extensively from the decision in Way. Nevertheless, the applicant submitted that his Honour fell into the error to which the Court referred at [131]: "What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." 9 To state matters shortly, his Honour started with the standard non-parole period of ten years, said that he proposed to reduce that by approximately 20 percent to allow for the utilitarian value of a relatively early plea of guilty, and then considered whether the resultant figure of eight years imprisonment should be increased or decreased by reference to the aggravating and mitigating factors that existed, but in my respectful view in doing so commenced with the standard non-parole period and oscillated around it by reference to the factors mentioned. In my view Ground 1 has been made out. Given the success of the applicant in relation to Ground 2, as well, it is not necessary to recite in any further detail the reasoning process of his Honour on this point, as may be gleaned from the transcript of his Honour's remarks on sentence. Ground 2 10 By reference to s 21A(2) of the Crimes (Sentencing Procedure) Act his Honour found that there were four aggravating factors: a record of previous convictions, within clause (d); that the offence was committed without regard for public safety, within clause (i); that the victims of drug use were vulnerable, within clause (l); and that the offence was part of a planned or organised criminal activity, within clause (m). Somewhat puzzlingly, his Honour also treated the extent of the applicant's criminal record as being a mitigating factor within the meaning of s 21A(3)(e), but it is not necessary to say anything further about this. 11 The applicant submitted that his Honour erred as to clauses (i) and (l). It might be said that the offence of supplying heroin, and related offences such as being deemed to supply heroin, all carry with them the concept that the supply of heroin is likely to endanger the public safety, in the sense that the end users are exposed to various dangers, and that because those with a heroin habit are likely to commit crimes to fund their habit, other members of the public will be exposed to various dangers. However, s 21A(2) is directed to a different question, namely whether there is some aggravating factor to be taken into account when imposing a sentence for a particular offence. It might be said that every supplier or deemed supplier of heroin has failed to have regard for public safety, but it cannot be right to say that everyone convicted of such an offence is to be punished on the basis that there is an aggravating factor, as described in s 21A(2)(i). 12 The applicant drew a distinction, which I accept as correct, between the supply (or deemed supply) of heroin and offences of a like kind on the one hand, and other offences about which one can properly say that there was a disregard for public safety such as to constitute an aggravating factor – for example, offences relating to the driving of a motor vehicle whilst inebriated, or involving the use of a firearm. 13 As to clause (l), concerning a vulnerable victim or victims, it is possible to think of potential heroin users as being victims, and as being vulnerable, in the sense that they are unable to resist, or unable to adequately resist the temptations of heroin, but, once again, a conviction for an offence for supplying heroin, or of being deemed to have supplied heroin, carries this concept with it, so that it is not correct to hypothesise about potential victims, and of their being vulnerable, and then to treat this hypothesis as constituting an aggravating factor, so far as concerns the particular sentence to be imposed for a particular offence. 14 Further, in the present case, the police intervened and took possession of the heroin before the applicant had an opportunity to resell it, so that in fact there was no victim, so far as concerns the particular quantity of heroin, the subject of the charge, and the subject of the sentence. Accordingly, Ground 2 is made out. Ground 3 15 The applicant submits that, when his Honour found that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act such as would justify a departure from the statutory ratio between a non-parole period and the balance of the sentence, he erred in that he considered that question only in relation to the balance of the sentence, and failed to take it into account in determining the length of the non-parole period. In my respectful view, it is not entirely clear from the transcript of his Honour's remarks on sentence what he intended in this regard, but since the Court must in any event consider for itself what sentence is appropriate, it is not necessary to decide the point. Ground 4 16 Once again, since the Court needs to consider the position for itself, it is unnecessary to decide this question, but I will refer later to his Honour's findings, so far as they now are relevant. Ground 5 17 It was submitted that the applicant provided a degree of assistance to the New South Wales Crime Commission in that, before being sentenced, he provided information that might have been of assistance in relation to proceedings brought against Chu under the Criminal Assets Recovery Act 1990. So far as the evidence shows, that assistance was limited to the applicant telling the Commission that he had taken some $270,00 to $280,000 with him from Brisbane to Sydney, and that he had handed that sum in cash to Chu, in return for the heroin. However, the applicant declined either to make a written statement or to give evidence about the affair, and the evidence does not establish what practical consequence, if any, resulted from his saying the things he said to the Commission. The applicant also said to the Commission that, when he acted as he did, he was doing so at the behest of some unnamed person. 18 His Honour found that the assistance did not meet the criteria of s 23 of the Crimes (Sentencing Procedure) Act, but said that he proposed nevertheless to take the conduct in question into account in the applicant's favour on the question of sentence. He did not specify in what way he considered that the conduct did not meet the criteria mentioned. By reference to page 5 of the transcript of 29 April 2004, when there were submissions made as to the appropriate sentence, the applicant submitted that his Honour erred, in that he treated this question as irrelevant to the determination, not of the non-parole period, but of the entire sentence. I am not confident that the transcript shows this, but in any event, there is no need to consider whether these remarks show some further error. The Appropriate Sentence 19 Error having been established, the Court came to the view that it should itself consider what sentence was appropriate. The offence was objectively serious. The applicant travelled from Brisbane to Sydney for the purpose of buying heroin, and on his version he paid $250,000 or more in cash for that heroin, purchasing it for the purpose of resale in or near Brisbane. Delaney DCJ found that, within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act the offence was not less than in the mid range of objective seriousness, for the offence of deemed supply, and this finding was not challenged on appeal. 20 The applicant pleaded guilty at an early stage, with utilitarian benefits, and he co-operated with the investigating officers to the extent mentioned above. 21 His Honour mentioned the applicant's prior criminal record. He had been convicted of various offences, all of them in Queensland. In 1988 he was convicted on a charge of permitting premises to be used for the purpose of a drug offence, and fined $750. There were other convictions for driving under the influence, resisting police, stealing, possessing a motor vehicle with intent to deprive, and entering or remaining upon casino premises whilst an excluded person. I do not regard any of these offences as having any real significance for present purposes. 22 The applicant did not give evidence, nor did his wife, who was present with him in his car as he travelled back from Sydney to Brisbane with the heroin, and who was also at Court during the sentencing proceedings. He has been in Australia since 1982, and an Australian citizen since 1987. He appears to have been in employment until 1990 when, it was said, he was injured in two motor accidents, sustaining significant injuries and disabilities. The evidence about these matters is very sparse, but he has a surgical scar demonstrating what appears to have been treatment for some neck injury, and generally it is not in dispute that he has some degree of impairment, depression and ongoing pain. It was his case that he took to the solace of alcohol, heroin and other illicit drugs, seeking pain relief, from about 1990 onwards. He has been in receipt of a disability pension since about that time, and as his Honour noted there is an absence of evidence as to how he could fund his alcohol and drug consumption, but of course he is not to be punished now for anything arising in this connection. 23 He has some other continuing health problems. He has exhibited a degree of remorse and contrition, he has undertaken some rehabilitation courses, and he has gone some way towards rehabilitation. However, having regard to his alcohol and drug dependence there is likely to be a need for continuing supervision upon his release to parole, warranting a total sentence where the balance of the term exceeds one third of the non-parole period, within the meaning of s 44 of the Crimes (Sentencing Procedure) Act. 24 Taking these matters into account I joined in the making of the following orders: 1. The time for filing a notice of application for leave to appeal extended until 17 December 2004. 2. Leave to appeal granted. 3. Sentence imposed by the District Court quashed. 4. In lieu thereof, sentence the applicant to imprisonment to consist of a non-parole period of five years, commencing on 27 February 2003 and expiring on 26 February 2008, and a total term of eight years, commencing on 27 February 2003 and expiring on 26 February 2011. 5. Specify 26 February 2008 as the earliest date on which the applicant will be eligible for parole. 25 BUDDIN J: I agree with Brownie AJA. 26 LATHAM J: I agreed with Brownie AJA. ********** 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.