Godfrey v R

1. [1]

   HOEBEN CJ at CL: I agree with R A Hulme J and the orders which he proposes.

2. [2]

   ADAMS J: I agree with R A Hulme J.

3. [3]

   R A HULME J: Bronson Samual Godfrey (“the applicant”) seeks leave to appeal against an aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years imposed in the District Court at Lismore on 29 April 2015 by his Honour Judge Blackmore SC.

4. [4]

   Details of the offences and the sentences the judge would have imposed if he had not imposed an aggregate sentence are as follows:

5. [5]

   At the applicant's request, the judge took into account the following offences in sentencing for the offence of attempting to supply a prohibited firearm (sequence 10):

6. [6]

   Further, the following summary offences listed on a certificate (s 166 Criminal Procedure Act 1986 (NSW) were also dealt with by his Honour:

7. [7]

   Leave is sought to appeal on the following grounds:

Ground 1 – failure to discount the sentences for the individual offences

1. [8]

   This ground is concerned with a short passage in his Honour's judgment that appears after his survey of the offences and the applicant's personal circumstances:

2. [9]

   Senior counsel for the applicant pointed out (correctly with respect) that the benefit to an offender for having pleaded guilty is something that must be taken into account in the assessment of the individual sentences. It is not something that is taken into account after having determined upon an aggregate sentence: see, for example, SHR v R [2014] NSWCCA 94 at [35]-[43]; JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39](3).

3. [10]

   Senior counsel for the Crown pointed out, however, that the judge did not apply a discount of 25 per cent to a 12 year period so as to arrive at an aggregate sentence of 9 years. Following the above passage in the judge's sentencing remarks, he announced that he made a finding of special circumstances so as to reduce the proportion of the sentence represented by the non-parole period. Next, he announced the indicative sentences for the individual offences. It was only then that his Honour announced and imposed the aggregate sentence of 8 years.

4. [11]

   With respect to his Honour, the sentencing remarks are not a model of clarity. (There are other aspects of the judgment which are concerning but are not relevant to any ground of appeal.) The important thing, however, is to bear in mind that an appeal is against the aggregate sentence and not the indicative sentences: JM v R at [40](11). A failure to apply a discount to the indicative sentences might cause an aggregate sentence to be excessive but if there is an erroneous application of a discount to the aggregate sentence it might not.

5. [12]

   In any event, I am not satisfied that this ground is made out. For the reasons advanced by the Crown, I am not persuaded that his Honour erroneously applied the discount for the pleas of guilty to the aggregate sentence. Moreover, there is nothing to indicate that his Honour did not apply it to each of the indicative sentences. The key to this appeal is the third ground in any event.

Ground 2 – failure to give any weight to the applicant’s subjective case

1. [13]

   This ground is concerned with the first two sentences in the passage quoted above. It is contended that in saying "returning to the seriousness of the offences" his Honour made an assessment of the aggregate sentence without having any regard to the applicant's subjective case.

2. [14]

   This complaint is untenable. I accept, again, that the sentencing remarks are not entirely clear but I tend to the view that his Honour may have been saying that if one were to focus solely upon the objective seriousness of the offences an aggregate term of at least 12 years was called for. The fact that his Honour subsequently announced indicative sentences and an aggregate term of 8 years indicates quite clearly in my view that the applicant's personal circumstances were factored into the assessment.

3. [15]

   It was immediately prior to the passage quoted above that his Honour reviewed the applicant's subjective case. In the course of doing so he referred to or said the following:

4. [16]

   In the light of the foregoing, it is clear that his Honour was mindful of, and took into account, the applicant's subjective case. This ground must be rejected.

Ground 3 – manifest excess

1. [17]

   A major component of the argument advanced in support of this ground was that the judge said after announcing the indicative sentences and before announcing the aggregate term:

2. [18]

   The offences of Attempt to supply a prohibited firearm and Possess unauthorised prohibited firearm concerned the same firearm. The indicative sentences were 6 years and 3 years 6 months respectively. It was stated in written submissions that “the possession offence relied on conduct included in the offence of attempting to supply the firearm”. It was submitted that the judge gave no consideration to "the commonality of factors between those two offences" and that if this had been done the sentences for them would have been entirely concurrent.

3. [19]

   The Crown responded, correctly in my view, that the criminality in the possession offence was not entirely subsumed with the attempted supply offence. The applicant's possession of the firearm was not confined to the time he attempted to sell it. By his own admission he had the item in his possession for about four years; it was given to him by a friend when he was aged 17.

4. [20]

   Moreover, when one compares the indicative sentence of 6 years for the attempted supply offence and the indicative sentences for all of the other offences (which total 16 years) with the aggregate term of 8 years it is obvious that there is substantially more concurrency than accumulation.

5. [21]

   The attempt to supply a prohibited firearm offence involved the applicant trying to sell a shortened .22 rifle which was only thwarted by the intervention of police. The judge's finding that it was "a very serious offence which must be reflected in the penalty" was not challenged.

6. [22]

   The three offences of supplying methylamphetamine and MDMA on three or more occasions in a 30 day period for financial or material reward involved the applicant engaging in a business of supplying these drugs on a regular basis. He used multiple mobile telephones subscribed with fictitious details to lessen the chance of detection. In the three and a half month period of the police investigation there were in excess of 16,500 calls and text messages, many relating to drug supply and collection of the proceeds. There was also the offence on the Form 1 of supplying 36 grams of cannabis in a number of transactions over that period. The judge's findings that the applicant "appears to have been well immersed in the business of drug selling" and that "he was a substantial drug supplier in this region" and his rejection of the applicant’s description of himself "as someone who has slipped into drug dealing merely to pay for his own drug use" were not challenged.

7. [23]

   The offence of possessing an unauthorised pistol concerned the finding in the applicant's bedroom of a replica .45 calibre handgun with magazine. An offence of possessing a prohibited weapon which was taken into account arose from a finding of metal knuckledusters in the same place.

8. [24]

   The offence of not stopping during a police pursuit, along with the other driving offences on the Form 1 and s 166 certificate, commenced with the applicant accelerating away harshly from a service station in Tweed Heads West after he became aware that a police car had pulled in behind him. He later bragged about his driving skills and commented that he had reached a speed of 240 km/h to evade the police; a fact not borne out by the police observations but the speed at which he drove was high nonetheless and the manner of his driving was dangerous in other respects as well.

9. [25]

   I have earlier referred to aspects of the applicant's subjective case which were specifically mentioned by the sentencing judge. The following succinct summary of his case was provided in written submissions:

10. [26]

    I am not persuaded that the aggregate sentence is manifestly excessive when regard is had to the range of serious criminal offending in which the applicant engaged over an extended period. I am satisfied that it appropriately and adequately took into account the applicant's personal circumstances. In short, the sentence was one which was comfortably within the range of the sentencing judge’s discretion.

11. [27]

    I would only grant leave to appeal because of the lack of clarity in some aspects of the sentencing judgment. In the end, however, the appeal lacks merit.

Orders

1. [28]

   I propose the following orders: