Adam Joseph BASEDOW v R

The application 14 Counsel for the applicant, Ms Francis, submitted that his Honour had fallen into error in his approach to the applicant's prior firearms offences and that, in any event, the sentence is manifestly excessive. 15 In relation to the previous convictions, his Honour said: "In considering where in the level of objective seriousness this offence comes, I cannot ignore the offender's clear refusal to ignore the rules that he very well knew applied to any collection of firearms. … So even if his offending can be seen at the lower end of objective seriousness, and being a passive collecting, he has lost any right to consideration of any special leniency through his prior record of possessing unauthorised firearms." 16 Ms Francis submitted that by taking into account the applicant's knowledge of the requisite provisions relating to firearms, and his choice to ignore them, as a matter bearing upon the objective seriousness of the offence, his Honour had failed to maintain the distinction between circumstances going to the seriousness of the offence, on the one hand, and matters more appropriately directed to the objectives of punishment, on the other. That distinction was expressed in R v Way [2004] NSWCCA 131, 60 NSWLR 168 at [90], in the context of an examination of the phrase "an offence in the middle of the range of objective seriousness" in s 54A(2) of the Crimes (Sentencing Procedure) Act 1999. The Court continued at [91]: "If that distinction is respected then the spectrum of offences, and the identification of those which fall in the mid range of seriousness can be confined to matters which are directly or causally related to its commission." 17 What the Court said in those paragraphs must be understood in the light of what was earlier said about the distinction between matters going to the objective seriousness of an offence and matters personal to the offender bearing upon the level of punishment. Their Honours said at [86]: "Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment." 18 Ms Francis's argument, as I understand it, was that the applicant's knowledge of the unlawfulness of his conduct could not be said to be causally related to the commission of the offence, so as to bear upon its objective gravity. On the other hand, the Crown prosecutor in this Court argued that that knowledge was embraced by the expression "mental state" in that passage from Way and, accordingly, was relevant to objective gravity. The mental state of the applicant, as he put it in written submissions, was that he "knew full well of his obligation to be licensed and to keep firearms in a safe manner, and that he chose to deliberately and flagrantly ignore those obligations …. ." 19 The Crown prosecutor referred to R v Cromarty [2004] NSWCCA 54, 114 A Crim R 515, which was a Crown appeal against sentences imposed upon the respondent for a charge under s 51D and other charges. The leading judgment in that case was delivered by Kirby J, with whom Simpson and Bell JJ agreed. At [64], in assessing the respondent's objective criminality, Kirby J said that it was "important that Mr Cromarty knew that he was in breach of the law", his conduct having been described by the sentencing judge as "a flagrant breach". 20 It does not appear that the point taken by Ms Francis was argued in Cromarty. In the present case it must be understood that what his Honour found to be relevant to the objective seriousness of the offence was the applicant's knowledge of the illegality of his behaviour. It was not his prior convictions for firearms offences as such, although they may have been the source of that knowledge. Viewed in that way, it is not apparent that his Honour fell into error. The offence would have been complete without knowledge that possession of the weapons was against the law and in ignorance of the policy considerations behind that law. The fact that it was committed with that knowledge could fairly be seen as increasing its objective gravity. The knowledge might not be causally related to the commission of the offence, but it could be said to be "directly" related: Way at [91] (cited above). 21 All that said, this is a matter which may be important to resolve in another case, but not in this one. In the circumstances of the present case, the point is so fine as to be insignificant. His Honour still found the offence to be in the lower range of objective gravity, and Ms Francis acknowledged that the applicant's awareness of the illegality of his behaviour remained a matter bearing upon the appropriate punishment. The distinction she sought to draw could not have affected the sentence his Honour determined in such a way as to provide a basis for this Court's intervention. 22 Ms Francis also challenged his Honour's reasoning, in the passage of his remarks set out above, that although the offence was at the lower end of objective seriousness, the applicant's previous convictions for firearm offences deprived him of "any special leniency". She argued that he remained entitled to a significant measure of leniency, given his generally creditable background and the fact that this offence was not committed with any criminal intent. However, those were matters which his Honour expressly took into account. He was saying no more than that the applicant was not entitled to any further measure of leniency because of his relevant criminal history. His Honour's approach was entirely in accord with the principles examined by this Court in R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566, and what he said discloses no error. 23 As to whether the sentence is manifestly excessive, it is necessary to have regard to the policy which informs the firearms legislation. As his Honour correctly put it in his remarks: "The policy of the legislature for firearms is to deter and punish unauthorised possession of firearms per se and to ensure that there is no unauthorised or unnecessary proliferation of firearms, which could be used to threaten and injure people, and to deter people who might be tempted to use firearms against others. The use of and dealing with firearms in our society is a privilege and strict regulation is needed to ensure general public safety." 24 Section 51D, introduced into the Firearms Act in 2002, was examined by Kirby J in R v Cromarty (supra) at [23] - [25]. Kirby J quoted some extracts from the speech of the Minister in introducing the amendment, which emphasised the community's concern about firearm related crime, referred to the enactment in the previous year of "tougher firearm trafficking laws designed to inhibit the illegal supply of firearms," and asserted that the new section was "a further strengthening of our laws". It would mean, the Minister said, that "criminals warehousing illegal guns for sale on the black market will be liable to up to 20 years in gaol if the firearm is prohibited or is a handgun." 25 Later in his judgment, Kirby J said: "… although the primary object of s 51D, introduced in 2002, may have been the punishment of criminals who warehouse illegal firearms, the objective was, I believe, broader than that. The measures, as the Minister announced in his Second Reading Speech, were 'designed to inhibit the illegal supply of firearms'. The purpose of the amendments extended to the stockpiling of weapons, as happened here, where that stockpile was vulnerable and, if violated, may feed the market in the illegal supply of firearms." 26 In Cromarty, the respondent had pleaded guilty to an offence under s 51D(2) and four other related offences arising from his possession of a very large number and variety of firearms and other material, including ammunition and silencers. Kirby J recorded at [11] that police had described it as the "largest cache of weapons ever taken from a private individual in Australia." They were not secured in accordance with the regulations. However, rather like the present case, the sentencing judge found that his possession of them was not for the purpose of profiting from their illegal trade but, rather, was the "result of a passion and obsession with firearms as well as other intricate and precision machinery and an almost morbid unwillingness to part with them, knowing that to do so would see them destroyed." He also found that the respondent "was not a person who in any sense could be described as a criminal or an associate of criminals and certainly not someone who was prepared to engage in the illicit trade in firearms.": [42] - [43]. 27 Notwithstanding those findings, the Court concluded that sentences imposed in the District Court, to be served by way of periodic detention, were manifestly inadequate. The respondent was re-sentenced to terms of full-time imprisonment aggregating 4 years with a non-parole period of 2 years. 28 Ms Francis sought some comfort in the outcome of that case, the objective facts of which were considerably more serious than the present case. Yet, she pointed out, that respondent's sentence was only 1 year greater than the applicant's, and their non-parole periods were the same. However, as she acknowledged, Cromarty was decided before the introduction of standard non-parole periods. Moreover, the Court exercised restraint in re-sentence in recognition of the principle of double jeopardy, which has since been removed through the insertion of s 68A into the Crimes (Appeal and Review) Act 2001: R v JW [2010] NSWCCA 49. 29 As I have said, his Honour took into account the subjective matters favouring the applicant, including the fact that the offence did not in any way demonstrate involvement in a criminal milieu. He also had proper regard to the applicant's previous convictions for firearm offences, giving them no more weight than they deserved. No doubt, the sentence is severe for a person of the applicant's background and general good standing. However, in the light of the maximum sentence and the standard non-parole period, it cannot be said to be outside the bounds of the legitimate exercise of discretion. 30 Since preparing this judgment I have read the brief judgments of McClellan CJ at CL and Simpson J. I cannot adopt their Honours' assertions that this sentence is markedly lenient. I express no view about that matter. Whether a pattern of sentence for the offence under s 51D(2) has emerged and, if so, where the present sentence lies within it, were not questions which were argued in this application. I have arrived at my conclusion on the basis only that the sentence has not been shown to be manifestly excessive. 31 I would grant leave to appeal but dismiss the appeal. **********