Laspina v R

1. [1]

   HOEBEN CJ at CL: I agree with R A Hulme J.

2. [2]

   ROTHMAN J: I have had the advantage of reading in draft the judgment of R A Hulme J and his reasons for judgment. It is therefore unnecessary to deal at any length with any of the major issues raised by the parties.

3. [3]

   It is often slightly unfair, when dealing with an experienced criminal judge, as was his Honour below, to find error based upon a failure to expressly deal with a particular point, particularly one that would be well-known to the judicial officer. Nevertheless, it is also inappropriate to treat judicial officers who are experienced differently from judicial officers who are not.

4. [4]

   As a consequence, even though it seems to me the issues of mental illness have probably been taken into account by the sentencing judge in synthesising the various purposes of sentence and the issues associated with them, when one has particular regard to the extent to which his Honour dealt with general deterrence, I am required to agree with the comments of R A Hulme J in relation thereto.

5. [5]

   His Honour, when sentencing, selected a range based upon a mid-range of objective seriousness, with which no party has sought to cavil. Further, it is only in very rare circumstances that this Court would interfere with such a determination.

6. [6]

   Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally.

7. [7]

   Nevertheless, this offender should not bear the brunt of a view that the range being imposed for firearm offences is set too low. As a consequence, I agree with all of the reasons of R A Hulme J and with the orders that his Honour proposes.

8. [8]

   Even though it is not central or even relevant to the reasons for judgment or orders, I would also reiterate the comments as to the competence of counsel for the applicant and the professional manner in which the oral submissions were delivered.

9. [9]

   R A HULME J: Mario Antonio Laspina (“the applicant”) was sentenced by his Honour Judge Lerve in the District Court at Dubbo on 14 August 2015 to a term of imprisonment of 7 years 9 months with a non-parole component of 5 years 2 months.

10. [10]

    The sentence was imposed in respect of two offences. For supplying a prohibited drug, namely cannabis, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is imprisonment for 10 years and/or a fine of 2000 penalty units, his Honour imposed a fixed term of imprisonment for 2 years commencing on 5 February 2014.

11. [11]

    For selling three or more firearms within a 12 month period, contrary to s 51B(1) of the Firearms Act 1996 (NSW) ("ongoing supply of firearms"), for which the maximum penalty is imprisonment for 20 years and there is a standard non-parole period of 10 years, his Honour imposed a sentence of imprisonment for 6 years 9 months with a non-parole period of 4 years 2 months commencing on 5 February 2015.

12. [12]

    The applicant asked the judge when sentencing him in respect of the firearms offence to take into account his guilt in respect of four further offences listed on a Form 1 document:

13. [13]

    The applicant seeks leave to appeal but only in relation to the sentence for the ongoing supply of firearms offence. He relies upon one ground (others were abandoned at the hearing of the application):

Facts

1. [14]

   There was a police operation carried out over a 12 month period from February 2013. It involved the use of electronic surveillance, telephone intercepts and a number of undercover operatives.

2. [15]

   From 5 February 2013 to 19 January 2014 in about 20 transactions the applicant supplied a total of over 13 kilograms of cannabis. These transactions involved undercover operatives but the applicant was also heard to be discussing cannabis sales to other customers.

3. [16]

   In four transactions between August and December 2013 the applicant supplied a total of eight firearms for $13,200. They comprised a sawn-off 12 gauge shotgun (not in working order); two .22 calibre rifles; a .410 gauge shotgun; a .22 calibre bolt action repeating rifle with scope; a .223 rifle with scope (later confirmed as stolen from a recent break and enter); a .303 rifle; and a .228 seven shot revolver.

4. [17]

   The applicant also supplied quantities of ammunition on two occasions. On the last occasion when three firearms and some ammunition were supplied he also supplied a timber stock crossbow.

5. [18]

   The applicant was also involved in discussions about the supply of Glock pistols. He agreed to supply three of them for $5000 each but this never eventuated.

6. [19]

   The applicant was arrested at his property in Orange on 5 February 2014.

7. [20]

   The learned sentencing judge found that the cannabis supply offence was "at the upper end of the mid-range of seriousness". He regarded it as "clearly a commercial or money-making venture". He regarded the ongoing supply of firearms offence as also "a commercial venture" and assessed it as falling "within the mid-range of objective seriousness".

Personal circumstances of the applicant

1. [21]

   The applicant was born in 1962 so he was aged 50 and 51 at the time of the offending.

2. [22]

   He has a criminal record going back to 1983. It includes a conviction in the Local Court in 1985 for possession of a prohibited weapon for which he received a community service order. There were convictions in the District Court in 1991 for two offences of cultivating and one of supplying cannabis for which he was imprisoned. He received a recognizance to be of good behaviour in the Local Court in 1995 for another offence of supplying cannabis. He received a suspended sentence of imprisonment for supplying cannabis in 2001.

3. [23]

   A relatively lengthy report by Dr John Roberts, psychiatrist, dated 20 July 2015 was tendered to the sentencing judge. The judge was not impressed by the style of the report (calling it "confusing and convoluted") but, nevertheless, he gave it careful consideration. He noted that there was reference to the applicant likely having suffered a head injury during the course of a serious assault in 1987. There were a number of admissions to Bloomfield Psychiatric Hospital at Orange. There was a history of almost daily cannabis use since the 1980's with only brief periods of abstinence. Dr Roberts' opinion was that the applicant "has suffered the inevitable results of long term substance use which relates to cannabis".

4. [24]

   The judge also had regard to reference in the report to the applicant having been diagnosed over the years with Depression; Bi-Polar Affective Disorder; Borderline Personality Disorder; Substance Abuse Disorder; and Dependent Personality Type.

5. [25]

   Towards the end of his Honour’s reference to the applicant's psychiatric condition he said:

6. [26]

   A Pre-Sentence Report indicated that the applicant's past response to supervision by Community Corrections (formerly the Probation and Parole Service), which had placed focus upon mental health and substance abuse issues, had been positive. The applicant's conduct in custody since his arrest in respect of the present matters was also positive. It was noted that he was found to have symptoms of "acute detoxification" after his admission and he was taken to hospital.

7. [27]

   The report is quite detailed but is well-summarised by its author, Ms Kirkwood, a senior community corrections officer, in the following passage:

8. [28]

   The applicant was assessed as being a medium risk of re-offending. Ms Kirkwood said that he would benefit from a period of supervision which would involve referral for drug and alcohol and mental health/disability assessment and treatment. Grief and loss counselling was also thought to be appropriate.

9. [29]

   The judge made a finding of special circumstances which had the effect of reducing the proportion of the sentence represented by the non-parole period. He did so partly in recognition of the applicant's mental health issues.

10. [30]

    The applicant's early pleas of guilty resulted in a 25 per cent reduction of the sentences to be imposed to reflect their utilitarian benefit.

Ground of appeal: error in failing to take into account the applicant's mental condition in assessing the moral culpability of his offending or in moderating the weight to be given to general deterrence

1. [31]

   Mr Chhabra of counsel appeared at the hearing of the application pro bono following the late withdrawal on medical grounds of senior counsel who had been briefed. Mr Chhabra adopted a very helpful and pragmatic approach in focussing on the sole ground of appeal that potentially had merit.

2. [32]

   The point was put clearly and succinctly in Mr Chhabra’s oral submissions and may be expressed shortly. The judge found that there was a causal connection between the unchallenged psychiatric condition of the applicant and his offending conduct. It had been submitted to the sentencing judge that this should have resulted in less weight being given to general deterrence. Despite the judge mentioning in his judgment that general deterrence was an important consideration he did not deal with the submission. It was also submitted that the judge should have found that the applicant's moral culpability was reduced for the same reason. The judge mentioned the applicant's mental condition as one of the bases upon which he found special circumstances but it was relevant to the overall sentence and not just the non-parole period.

3. [33]

   In written submissions the Crown contended that the evidence was to the effect that the applicant well-knew what he was doing in committing both the drug and ongoing firearm supply offences and accordingly there was no error in the judge not finding that the need for general deterrence was diminished. Reference was made to the often quoted passage in the judgment of Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 51 where his Honour said that if an offender "acts with knowledge of what he [or she] is doing and with knowledge of the gravity of his [or her] actions, the moderation [of the weight to be given to general deterrence] need not be great".

4. [34]

   Mr Chhabra took the Court to R v Pitt [2005] NSWCCA 304 where Hall J (with the concurrence of Grove and Hoeben JJ (as the latter then was)) drew attention to the two components of what Hunt CJ at CL had said in the above quote from R v Wright. His Honour said (at [25]):

5. [35]

   It was Mr Chhabra’s submission that R v Pitt demonstrated that R v Wright (in terms of the passage I have quoted) “does not have general application”. I note that in R v Pitt, Hall J concluded that it was inadequate for the sentencing judge to have confined the relevance of the offender’s mental condition to a finding of special circumstances, which coincides with what the judge did in the present case. Mr Chhabra’s submission on the application of R v Pitt to the present case bears repeating:

Consideration

1. [36]

   It is apparent from the transcript of the sentence proceedings that it was not an easy sentencing exercise that was presented to Lerve DCJ. That is for a variety of reasons, one of which was that senior counsel then appearing for the applicant raised a substantial issue about whether his client's moral culpability was reduced on account of the actions of the police undercover operatives. In the end his Honour rejected the point but the dimension this issue assumed during the course of the hearing might well explain why the focus upon the applicant's moral culpability was diverted from a consideration of his mental condition.

2. [37]

   However, during the course of submissions there was the following exchange:

3. [38]

   The two cases to which his Honour referred were Aslan v R [2014] NSWCCA 114 and Ngati v R [2014] NSWCCA 125.

4. [39]

   In Aslan v R at [35], Simpson J (as her Honour then was) (helpfully) wrote:

5. [40]

   In Ngati v R, Beech-Jones J engaged in a discussion about how an offender’s mental condition (in that case an impaired intellectual capacity) may impact upon their moral culpability for an offence. He referred to Aslan v R and quoted [34] therein.

6. [41]

   So, whilst having indicated an awareness of relevant sentencing principles in relation to offenders with an impaired mental condition, having had it expressly raised in the written submissions by senior counsel for the applicant, and having expressly concluded that “there is a causal connection between the offending behaviour and the psychiatric conditions referred to in the report of Dr Roberts”, it would seem that the learned judge overlooked the need to deal with that conclusion. What his Honour might have concluded if he did is moot. But one thing that is clear is that his Honour indicated how important he regarded general deterrence in the assessment of sentence. He referred to it a number of times and even devoted seven paragraphs to the subject under the heading “Issue of General Deterrence” which commenced as follows:

7. [42]

   His Honour then discussed the subject, with reference to a number of authorities, one concerned with the need for general deterrence in relation to drug supply (R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) and three in relation to firearms offences (Lachlan v R [2015] NSWCCA 178; Athos v R [2013] NSWCCA 205; and R v Howard [2004] NSWCCA 348). He observed that the three firearms cases involved possession but held that the same consideration “must surely apply so far as the supply or sale of firearms is concerned”. There could be no argument with that observation.

8. [43]

   I am satisfied that error has been established that “vitiates the exercise of the sentencer’s discretion” and that it is thereby necessary for this Court to re-exercise the sentencing discretion: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].

Resentencing

1. [44]

   I accept the finding by the sentencing judge that there was a causal connection between the applicant’s mental condition and the offending behaviour. I am also of the view that the connection was quite marginal. The judge had the benefit of considering the oral evidence of the applicant in the light of having read the (selected) transcripts of his recorded conversations with the undercover operatives that were tendered. They were tendered in support of the unsuccessful effort to persuade the judge that the applicant’s moral culpability for the offences was reduced on account of the manner in which the operatives interacted with him. His Honour’s conclusion on that issue was adverse to the applicant. But his Honour immediately proceeded to discuss the applicant’s “psychiatric condition”. Relevantly, he said:

2. [45]

   I am prepared to accept that the applicant’s moral culpability for his offending and the need for general deterrence is reduced to a degree but not greatly.

3. [46]

   No submissions were made on the application about other aspects of how the applicant might be re-sentenced if error were established. No affidavit was read as to any events that had transpired since sentencing. In these circumstances there is no need for me to engage in a lengthy discussion of all of the relevant circumstances and I can confine my reasons to stating that I have made my own assessment of the other considerations that bore upon the primary judge’s assessment of sentence and I agree with them. Of course, this includes the allowance of a 25% reduction of sentence on account of the applicant’s plea of guilty. I am of the view that a starting point for the sentence should be one of 8 years before such reduction. The offences on the Form 1 document have been taken into account.

4. [47]

   I reiterate that there is no complaint about the 2 year fixed term of imprisonment that was imposed for the drug supply offence. A period of partial accumulation of 1 year as adopted by the primary judge remains appropriate and no submission was made to the contrary.

5. [48]

   As to the ongoing firearms supply offence, the primary judge found special circumstances because (a) “the offender will require significant assistance to reintegrate into the community and he will require intensive and extensive supervision to ensure he remains free of illicit substances”; (b) “there is also the issue of his mental health”; and (c) “there is also the issue of partial accumulation of the sentences or the drug and firearm offences”. I consider factors (a) and (c) to be relevant and appropriate but not (b) because there would be double counting as I have factored that into the assessment of the head sentence.

Orders

1. [49]

   I propose the following orders: