Ristovski v R

HOEBEN CJ at CL:

The applicant sought to have the following further offences taken into account on a Form 1 in relation to Count 2:

Haesler SC DCJ in an ex tempore sentence judgment imposed an aggregate head sentence of 2 years and 3 months with a non-parole period of 1 year. The indicative sentences were:

The applicant seeks leave to appeal against that sentence on the following grounds:

On 5 September 2014 police executed a search warrant at the applicant’s home. Heroin, methylamphetamine and cash were found in the home.

The applicant lived there with his wife and two daughters, then aged 13 and 5. The amount of drugs found was, in the scheme of things, relatively modest. There was evidence before the court that the heroin was valued at about $5,000 street value and the methylamphetamine at about $6,500.

A plea of guilty was entered one week before the date fixed for trial. In those circumstances, his Honour applied a discount of 10 per cent to reflect the utilitarian value of the plea of guilty.

His Honour took into account the large amount of cash, giving rise to the proceeds of crime offence, and noted that he would not be sentencing the applicant in respect of that offence, but would increase the sentence for count 2 in accordance with Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 and as part of the instinctive synthesis approach to sentencing, set out in Markarian v The Queen [2005] HCA 25; 228 CLR 357.

In relation to the presence of the applicant’s wife and children in the home where drugs were found, his Honour said:

In relation to the objective seriousness of the offending, his Honour observed that the sale and distribution of illicit drugs caused considerable harm in the community, not just to those who use the drugs but to their families, and to those who are preyed upon by people who steal or engage in other criminal activities to get funds to purchase drugs. It was for this reason that general deterrence played such an important part in sentencing for drug supply offences. His Honour noted that despite the high penalties for drug supply offences, the applicant had continued to engage in that activity. His Honour regarded the offending as serious even though the quantity of drugs was modest.

His Honour examined in some detail the applicant’s subjective case and his motivation for offending. The applicant had convictions for previous drug supply offences. This offending, however, had occurred 20 years before the present offences. During that 20 year period, the applicant had no convictions of any kind.

The applicant was diagnosed with IgA neuropathy which requires daily kidney dialysis. There was evidence before the court that the applicant required a kidney transplant but was on a very long waiting list. There was an option of a transplant in Croatia but it would be very expensive. In those circumstances, his Honour was prepared to accept that the applicant turned to drug supply in order to obtain funds to help pay for the proposed operation. Although his Honour gave weight to those considerations, his Honour also accepted the need to be somewhat cautious and sceptical in relation to those matters, having regard to what the Court of Criminal Appeal said in Qutami v R [2001] NSWCCA 353; 127 A Crim R 369 about taking into account untested assertions which go to mitigate penalty. In that regard, no oral evidence was given by the applicant or his wife.

Despite those reservations, his Honour concluded on balance that the motivation put forward for the selling of drugs did have a plausible basis. Even so, his Honour noted that while that explanation provided some assistance to the applicant’s subjective case, it could not operate to excuse the offending. His Honour observed:

His Honour took into account, as part of the applicant’s subjective case, that he and his wife had worked hard to make a good home for their daughters and that the youngest of the daughters had significant health problems of her own. His Honour accepted that the family had struggled because of the applicant’s health problems and that they had placed stress on the applicant’s relationship with his wife. The applicant’s illness meant that he had been unable to work for a significant period of time and that his wife has had to care for him, as well as the family.

His Honour noted that although the applicant’s psychological condition made him vulnerable to taking short cuts, and his medical condition must attract sympathy, the applicant had placed his own needs above those of the community when he chose to engage in the sale of drugs. His Honour also noted that because of his ill-health, the applicant’s time in prison would be much more onerous for him than for the normal prison population. The Court was advised that the applicant spent some hours each day connected to a dialysis machine.

Despite these matters, his Honour determined that the non-parole period to be imposed still had to reflect the seriousness of the offending. His Honour found special circumstances because of the applicant’s ill-health and significantly reduced the length of the non-parole period to be imposed.

The applicant submitted that the sentencing judge did not consider the question of whether or not the applicant’s medical condition constituted “truly exceptional circumstances” so as to leave open the option of a non-custodial sentence. The applicant submitted that in failing to consider this question, his Honour fell into error.

Although not relied upon by the applicant in Ground 1, the Crown correctly drew the Court’s attention to recent decisions of this Court which placed doubt on the oft quoted principle set out in R v Clarke (unreported, NSWCCA, 15 March 1990) to the effect that:

The Crown referred the Court to the recent decisions of Robertson v R [2017] NSWCCA 205 where Simpson JA concluded that too rigid an application of what was said in Clarke might wrongly involve a two stage sentencing process and wrongly fetter a judge’s sentencing discretion. In Kay v R; Ellis v R [2017] NSWCCA 218 at [46] – [47] I expressed a similar opinion with which Davies and Bellew JJ agreed. At the present time, a five member bench of this Court is considering the applicability of the “Clarke principle” (R v Parente, heard 4 October 2017).

Subject to the outcome of the Parente proceedings, Clarke v R remains good law and it was not an error on the part of his Honour to apply it.

In that regard, it cannot be said that his Honour ignored the applicant’s medical condition and did not give it appropriate weight. The applicant’s medical condition occupied a considerable part of the judgment. It is significant that defence counsel in the sentence proceedings did not submit that the applicant’s health problems were such as to constitute exceptional circumstances. Being familiar with Clarke v R as he was, had his Honour considered that exceptional circumstances had been made out, he would have made such a finding and implemented it when imposing sentence. The fact that his Honour did not do so is a strong indication that his Honour was not of that opinion.

In any event, the applicant on appeal is substantially bound by the way in which he ran his case at first instance (Zreika v R [2012] NSWCCA 44). In those circumstances, it is somewhat unfair to assert error on the part of a sentencing judge in not dealing with a matter which was not raised before him or her. This would include the application of the “Clarke principle” and how to treat the applicant’s medical condition. As already indicated, when his Honour said “there has to be a custodial sentence” counsel for the applicant did not say anything at that point about the proviso for exceptional circumstances which one would have expected if the applicant was relying on it.

This ground of appeal has not been made out.

The applicant submitted that in his sentence judgment, his Honour referred to the harm which the sale and distribution of illicit drugs caused to the community and concluded his observation on this subject by referring to the applicant’s knowledge of the consequences of drug supply because of his previous convictions for that kind of offence. The applicant submitted that by treating the applicant’s prior criminal record as an aggravating factor, his Honour fell into error. This was particularly so when those offences had been committed 20 years before the offences under consideration.

The observation relied upon by the applicant to substantiate this ground of appeal does not support the submission that his Honour treated the applicant’s criminal record as an aggravating factor. Looked at in its full context, the impugned observation by his Honour went no further than demonstrating the applicant’s moral culpability as a result of being involved in drug supply in that he was a person who was well aware of the harm done by drug supply and the consequences of being apprehended.

This is made clear by an exchange between his Honour and defence counsel, Mr Hallas, in the sentence proceedings:

This ground of appeal has not been made out.

The applicant submitted that the way in which Honour referred to this matter was indicative of him using it as an aggravating factor (see [9] hereof). The applicant submitted that in doing so, his Honour erred in at least three ways:

His Honour did not err in treating the matter raised in Ground 3 as an aggravating factor. His Honour does not appear to be referring to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) i.e. that the offence was committed in the presence of a child under 18 years of age. His Honour was doing no more than making the common sense observation that by keeping drugs and a large sum of money at his home, the applicant was placing his family at risk for the reasons which his Honour indicated. His Honour’s observation was undoubtedly correct and his Honour was entitled to take that matter into account as a matter of aggravation.

This ground of appeal has not been made out.

The applicant submitted that if one did not take into account his health, his Honour was entitled to impose the sentence which he did. In the light of his severe kidney disease, however, the applicant submitted that the sentence imposed on him was, in the circumstances, manifestly excessive.

The relevant principles to be applied when determining whether a sentence is manifestly excessive were recently set out by R A Hulme J in Obeid v R [2017] NSWCCA 221 at [443] (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) namely:

Applying those principles, the aggregate sentence in this case is not shown to be unreasonable or plainly unjust for the following reasons.

This ground of appeal has not been made out.

The orders which I propose are:

DAVIES J: I agree with Hoeben CJ at CL.

ADAMSON J: I agree with Hoeben CJ at CL.