Tassis v R

1. [1]

   HOEBEN CJ AT CL: I agree with Bellew J.

2. [2]

   BELLEW J: On 2 March 2015 Dimitri Terry Tassis (“the applicant”) pleaded guilty in the District Court of New South Wales to the following charges:

3. [3]

   In addition, the applicant asked the sentencing judge to take into account:

4. [4]

   In respect of counts 1 and 2, the maximum penalty is imprisonment for 14 years. As at 4 February 2013, that being the date of the offending, a standard non-parole period of three years was prescribed. That was increased to four years on 21 August 2015. The maximum penalty for the offending in count 3 is imprisonment for 15 years. No standard non-parole period is prescribed for the offending in that count.

5. [5]

   On 15 December 2015, the applicant was sentenced by Hosking SC ADCJ as follows:

6. [6]

   The total sentence comprised a non-parole period of 2 years and 9 months to date from 24 November 2015 and to expire on 23 August 2018, with an additional term of 1 year and 3 months to expire on 23 November 2019.

7. [7]

   The applicant now seeks leave to appeal against the sentences imposed in respect of counts 1 and 2 on the basis of a single ground which is discussed more fully below. He makes no complaint about the sentence imposed in respect of count 3.

The facts of the offending

1. [8]

   A statement of agreed facts was tendered before the sentencing judge, on the basis of which his Honour found the facts to be as follows:

The findings of the sentencing judge

1. [9]

   The sentencing judge (at ROS 5) accepted the submission advanced on behalf of the applicant that his offending in counts 1 and 2 was below the mid-range of objective seriousness. The principal factors which led his Honour to reach that conclusion were that the applicant had the firearms in his possession for only a short time, and had acquired them opportunistically. At the same time, his Honour noted that when offered the opportunity to purchase them, the applicant did not appear to hesitate in doing so.

2. [10]

   His Honour found (at ROS 5-6) that the primary motivation for the offending in counts 1 and 2 stemmed from the fact that the applicant was “getting paranoid fears from constantly having drugs and money in his house and he thought the guns would calm his paranoia”. He accepted that there was no evidence that the applicant intended to pass the firearms on to anybody else for criminal purposes, or that he intended to sell them himself. At the same time, his Honour observed that the applicant had parted with possession of the firearms to allow them to be sent via post, which he described as “a less safe method of transporting them”. His Honour also observed (at ROS 6) that personal protection was no excuse for the possession of firearms because of the danger that they posed.

3. [11]

   In terms of the applicant’s subjective case, the sentencing judge found (at ROS 7) that apart from being a long-term drug user, the applicant was otherwise a man of good character, as evidenced by the testimonials which had been tendered on his behalf. His Honour also took into account a psychologist’s report which stated that although the applicant had been suffering from significant levels of depression and anxiety, he appeared to have been drug free since early 2014. His Honour concluded that there was no relevant causal connection between the applicant’s mental state, and his offending.

4. [12]

   His Honour (at ROS 9) applied a discount of 25% to reflect the applicant’s pleas of guilty and noted the acknowledgment of senior counsel then appearing for the applicant that some accumulation of sentence was necessary. His Honour also made a finding of special circumstances before proceeding to impose the sentences set out above.

The observations of the sentencing judge

1. [13]

   His Honour (at ROS 1) noted that each of the offences in counts 1 and 2 carried a maximum penalty of 14 years imprisonment, and a standard non-parole period of 3 years imprisonment. When dealing with the objective criminality of the offending in counts 1 and 2, his Honour said (commencing at ROS 4):

2. [14]

   In formulating the sentences, his Honour said (commencing at ROS 9):

Submissions of the applicant

1. [15]

   Counsel for the applicant emphasised that the sentencing judge had found that both of the offences fell below the mid-range of objective seriousness, and that he had identified no aggravating factors. It was submitted that when consideration was given to the maximum penalty and the standard non-parole period (they being the two relevant legislative guide posts), the formulation of a sentence with a notional non-parole period that exceeded the standard non-parole period by a considerable margin was indicative of error.

2. [16]

   It was submitted on behalf of the applicant that the sentencing judge had indicated that the starting point for the calculation of each sentence was an overall sentence of 5 years imprisonment. It was submitted that absent a finding of special circumstances, a term of imprisonment of 5 years would ordinarily result in the imposition of a non-parole period of 3 years and 9 months. It was pointed out that such a period was significantly longer than the standard non-parole period, notwithstanding the finding that the offences fell below the mid-range of objective seriousness.

3. [17]

   Counsel for the applicant submitted that in these circumstances, the sentencing judge had erred in fixing a starting point of 5 years in respect of the sentences for counts 1 and 2, and that such “an unduly high starting point” was indicative of the fact that the sentencing judge had allowed the maximum penalty to constrain his sentencing discretion. It was submitted that this was confirmed by his Honour’s reference to (in the passage set out in [13] above) the fact that but for the standard non-parole period, the sentences which would have been imposed would have been higher.

4. [18]

   It was submitted that the sentencing judge was obliged to formulate a sentence referable to both of the identified legislative guide posts, and that the five year starting point indicated that the maximum penalty had become the operative, or predominant, consideration, with the standard non-parole period having a reduced significance.

5. [19]

   Counsel for the applicant relied on two further matters which, it was submitted, supported a conclusion that the sentencing judge had given undue weight to the maximum penalty in the sentencing exercise.

6. [20]

   Firstly, it was submitted that s. 7(1) of the Act contemplated a wide range of offending, of varying degrees of seriousness, and that when the circumstances of the applicant’s offending were considered, the maximum penalty had reduced relevance. It was submitted that the maximum penalty was designed to accommodate far more serious examples of offending.

7. [21]

   Secondly, it was submitted that the various aspects of the applicant’s strong subjective case were relevant to the determination of an appropriate starting point, and that the high starting point for the sentences, in the face of moderate findings as to objective seriousness, the absence of aggravating factors and the presence of mitigating factors, all pointed to the conclusion that the maximum penalty was given undue prominence in the sentencing exercise.

8. [22]

   It was submitted that in all of these circumstances, error was established and that this Court should intervene and exercise the sentencing discretion afresh.

Submissions of the Crown

1. [23]

   The Crown submitted that the ground upon which the applicant relied was untenable on three bases.

2. [24]

   Firstly, it was submitted that the proposition that the sentencing discretion had been constrained by the maximum penalty was entirely predicated on the existence of a notional starting point which, it was submitted, reflected an error in approach.

3. [25]

   Secondly, it was submitted that notwithstanding the complaint that the sentencing discretion was constrained by the maximum penalty, it was, in reality, the non-parole period that was said to be indicative of error.

4. [26]

   Thirdly, it was submitted that if the applicant’s argument was taken to its logical conclusion, it would mean that in the case of the offending in counts 1 and 2, where the objective gravity was found to be below mid-range, a head sentence greater than 4 years could never be imposed because of the presence of a 3 year standard non-parole period, despite the maximum penalty being 14 years. It was submitted that such an outcome could never have been within the contemplation of the Parliament, for the simple reason that it would have the capacity to produce an absurd sentencing outcome.

CONSIDERATION

1. [27]

   As pleaded, the ground upon which the applicant relies asserts that as a consequence of allowing the sentencing discretion to be constrained by the maximum penalty, “inappropriately severe” sentences were imposed in respect of counts 1 and 2. There are a number of difficulties with that proposition.

2. [28]

   Firstly, focus upon the starting point before the application of the relevant discount deflects attention from the ultimate question, namely whether, in the present case, the sentences were “inappropriately severe”: Adzioski v R [2013] NSWCCA 69 at [72] per Hoeben CJ at CL.

3. [29]

   Secondly, this Court has observed that it is generally neither appropriate nor helpful to adopt an assumed starting point as a basis upon which to argue that a sentence is manifestly excessive: Hayek v R [2016] NSWCCA 126 per Wilson J (with whom Bathurst CJ and Schmidt J agreed). There is no material difference, for present purposes, between asserting that a sentence is manifestly excessive on the one hand, or asserting that it is “inappropriately severe” on the other.

4. [30]

   Thirdly, the real complaint made by the applicant is that insufficient weight was given to the standard non-parole period. This reflects an error in approach. The obligation of the sentencing judge was to impose a sentence which took into account all relevant factors. The legislative guide posts were two such factors. In having regard to those legislative guide posts, it was necessary that the sentencing judge not give priority to either one. The effect of the submissions advanced on behalf of the applicant was to emphasise the standard non-parole period. Such a mechanistic approach is fundamentally contrary to the instinctive synthesis which the sentencing judge was bound to, and did, apply. Moreover, careful attention must always be paid to maximum penalties: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [31]. His Honour properly took that factor, as well as the standard non-parole period, into account and no error has been demonstrated.

5. [31]

   For these reasons, the ground of appeal fails.

ORDERS

1. [32]

   I propose the following order:

   1. (1)

      Leave to appeal against sentence is refused.

2. [33]

   FAGAN J: I agree with Bellew J.