Gotsis v R [2013] NSWCCA 184

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gotsis v R [2013] NSWCCA 184 Hearing dates: 31 July 2013 Decision date: 31 July 2013 Before: Beazley P at [1] [17] [21] [23] Johnson J at [18] Price J at [2] [22] Decision: 1.Leave to appeal granted. 2. Appeal dismissed Catchwords: CRIMINAL LAW - sentencing - whether full effect given to utilitarian discount - whether greater degree of concurrency of sentence required - whether proper adjustment to statutory ratio - special circumstances - whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 s 86(2), s 95(1) s 112(2) Criminal Appeal Act 1912 s 6(3) Crimes (Sentencing Procedure) Act 1999 s 32 Cases Cited: R v Allan John Quinn [2005] VSCA 100 Shaw v The Queen [2010] NSWCCA 23 Category: Principal judgment Parties: Antonio Gotsis (Applicant) Regina (Respondent) Representation: Counsel: P Lange (Applicant) S Herbert (Respondent) Solicitors: Matouk Joyner Lawyers (Applicant) Department of Public Prosecutions (Respondent) File Number(s): 2009/7581 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-09-15 00:00:00 Before: Blanch J File Number(s): 2009/7581

JUDGMENT 1BEAZLEY P: The Court is in a position to give judgment. I will ask Price J to give the first judgment. 2PRICE J: The applicant was sentenced by Blanch J (the Chief Judge) in the District Court to a total effective sentence of 9 years imprisonment with an effective non-parole period of 5 years following pleas of guilty to three offences of aggravated break enter and steal contrary to s 112(2) Crimes Act 1900 and one offence of assault with intent to rob in circumstances of aggravation contrary to s 95(1) Crimes Act. On each of the offences of aggravated break enter and steal there were further offences of aggravated detain for advantage contrary to s 86(2) Crimes Act placed on separate Form 1 documents which were taken into account on sentence pursuant to s 32 Crimes (Sentencing Procedure) Act 1999. 3At the time of the imposition of the sentence by the Chief Judge the applicant was serving a sentence with a full term of 10 years and an effective non-parole period of 7 years which had been imposed by Zahra DCJ on 15 February 2008. The effective non-parole period for this sentence would expire on 29 November 2014 and the full term on 29 November 2017. The Chief Judge commenced the sentence that he imposed partly concurrent to the existing sentence by commencing the sentence on 30 November 2013. The earliest date that the applicant is eligible for parole is 29 November 2018 and the sentence is to expire on 29 November 2022. Accordingly, the total effective sentence being served by the applicant is 15 years with an effective non-parole period of 11 years. 4The Chief Judge said in his remarks on sentence that the applicant had been given a combined discount of 50 per cent for assistance to authorities and for his pleas of guilty. 5In Ground 1 of the appeal, the applicant contends that in applying the discount for the utilitarian value of the pleas and the applicant's assistance, the Chief Judge did not give full effect to the discount of 50 per cent that he had specified. The applicant submits that from the Chief Judge's sentencing remarks his Honour intended to afford a discount of 5 years from the non-parole period but in reality had afforded a 4 year discount as part of the discount was achieved by way of 12 months partial accumulation with the sentence imposed by Zahra DCJ. 6I find no error in the Chief Judge's approach to the application of the discount of 50 per cent which was quantified by his Honour as a discount of 4 years that was entirely for the offer of assistance, and a discount of 1 year for the pleas of guilty. The total discount of 5 years is consistent with being 50 per cent of the period the applicant would otherwise have served as the Chief Judge imposed a total non-parole period of 5 years. The concurrency of the sentence of 12 months benefited the applicant as the increase in the effective non-parole period is confined to 4 years and the mandatory period of imprisonment is effectively reduced. I would reject Ground 1 of the appeal. 7In Ground 2 of the appeal, the applicant contends that in determining the issue of totality, the Chief Judge erred in failing to provide a greater degree of concurrency between the sentence he imposed and the sentence imposed by Zahra DCJ in order to give proper effect to the discount for assistance to the authorities. The applicant submits that in the light of the minimal overlap between the two sentences of 1 year, the Chief Judge did not take the applicant's assistance into account in any meaningful way, if at all, in assessing the issue of totality in respect of the total sentence. 8In Ground 3 of the appeal, the applicant contends that the Chief Judge erred in concluding that there was no basis for finding the existence of special circumstances, except based upon the accumulation of sentences. The Court's attention was drawn to the Chief Judge's remarks (ROS 18): "I have found special circumstances in relation to the individual sentences and insofar as the overall sentence is concerned, I am conscious of the fact that the overall period is only just less than the statutory ratio but in this case I see no reason for there to be a longer period of supervision than the four years provided." 9The applicant argues that the ratio between the effective head sentence and the effective non-parole period was 73.3 per cent and this minimal departure from the statutory ratio does not take into account the fact that the applicant would be required to spend his time in custody in more onerous conditions. 10In oral submissions, the applicant argued that in order to give effect to the 50 per cent discount the Chief Judge was required to commence the concurrency of the sentences earlier in time or to find special circumstances. It was submitted that his Honour failed to take into account the effect that the assistance would have in his serving an overall sentence. Grounds 2 and 3 were said to be related. The applicant also relied on R v Allan John Quinn [2005] VSCA 100. 11I do not accept these submissions. The circumstances in Quinn were different to the considerations before the Chief Judge. The combined discount of 50 per cent and the concurrency of sentence of 12 months adequately reflected the pleas of guilty and the level of assistance provided. The extent of the partial accumulation was open to the Chief Judge in the exercise of his sentencing discretion. 12Special circumstances having been found, the size of an adjustment to the statutory ratio, is essentially within a sentencing judge's discretion. The Chief Judge was aware that the adjustment was only slightly less than the statutory ratio. Furthermore, his Honour had considered the conditions under which the applicant would serve his sentence and had made allowance for that in the sentence. I conclude that the Chief Judge's finding of special circumstances and the adjustment of the statutory ratio was well within his sentencing discretion. I would reject Grounds 2 and 3 of the appeal. 13In Ground 4 of the appeal, the applicant contends that the overall sentence imposed was manifestly excessive. The applicant points to the Chief Judge's findings of the applicant's remorse, and his capacity to rehabilitate himself. The applicant submits that a "crushing sentence" was imposed. 14The Chief Judge characterised the offences as falling "well above the mid range of seriousness" (ROS 11). His Honour said (ROS 11): "They are all very serious offences, involving the terrorising of people in their own homes, some of the victims being older people, but all of them being terrified in the circumstances that they found themselves in. They are offences that call for punishment that reflects strongly the principles of general deterrence as well as individual deterrence." 15I agree with the Chief Judge's characterisation of the offences. It is plain that his Honour carefully considered the applicant's subjective case and the principle of totality before imposing sentence. The applicant has not shown that the overall sentence was unreasonable or plainly unjust. It is not manifestly excessive. I would reject Ground 4 of the appeal. 16Accordingly I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 17BEAZLEYP: I agree with the reasons of Price J and with the orders he proposes. 18JOHNSON J: I also agree with the reasons and orders proposed by Price J. As a member of this Court in Shaw v R [2010] NSWCCA 23, where the Victorian decision in R v Quinn [2005] VSCA 100 was applied, I wish to add a number of observations to place in context that decision. 19In my view, nothing said by the Victorian Court of Appeal in Quinn, nor this Court in Shaw, is of assistance to the applicant. In the present appeal, the applicant had not provided any assistance to the authorities prior to being sentenced by Zahra DCJ on 15 February 2008. His assistance commenced some time after then, and before being sentenced by Blanch J on 5 July 2011. The applicant's position is quite different to those considered in Quinn and Shaw, where assistance was provided by each offender prior to the sentence imposed first in time. That is not this case. 20No error has been demonstrated by the applicant. However, even if some error had been demonstrated (and it has not), for the purpose of s 6(3) of the Criminal Appeal Act 1912, I would have readily formed the view that no lesser sentence was warranted in any event for the most serious crimes for which the applicant was sentenced on 5 July 2011. 21BEAZLEY P: I will just record my agreement with the additional remarks of Johnson J. 22PRICE J: I also agree with the additional remarks of Johnson J. 23BEAZLEY P: Accordingly, the orders of the Court are: 1. Leave to appeal granted. 2. Appeal dismissed.