(2014) 246 A Crim R 528
R v Brown [2006] NSWCCA 249
R v Cromarty [2004] NSWCCA 54
(2004) 144 A Crim R 515
R v Lachlan [2015] NSWCCA 178
(2015) 252 A Crim R 277
Taylor v R [2018] NSWCCA 50
Weaver v R [2021] NSWCCA 215
Wong v The Queen (2001) 207 CLR 584
[2001] HCA 64
Category: Principal judgment
Parties: Peter James Aird (Applicant)
Regina (Respondent)
Representation: Counsel:
Source
Original judgment source is linked above.
Catchwords
(2014) 246 A Crim R 528
R v Brown [2006] NSWCCA 249
R v Cromarty [2004] NSWCCA 54(2004) 144 A Crim R 515
R v Lachlan [2015] NSWCCA 178(2015) 252 A Crim R 277
Taylor v R [2018] NSWCCA 50
Weaver v R [2021] NSWCCA 215
Wong v The Queen (2001) 207 CLR 584[2001] HCA 64
Category: Principal judgment
Parties: Peter James Aird (Applicant)
Regina (Respondent)
Representation: Counsel:
Judgment (4 paragraphs)
[1]
The applicant's subjective case
His Honour took into account as aggravating factors that the offences were committed whilst the applicant was on bail, and noted that he could not be said to not have a record or significant record of previous offending, as was conceded (ROS [41]-[42]).
His Honour found that the applicant was at a low risk of reoffending and had good prospects of rehabilitation, each mitigating the need for specific deterrence. He also considered that there was no particular need for the community to be protected by the applicant's detention for any extended period (ROS [60]-[61]).
Finally, the sentencing judge was satisfied that the applicant regretted that the offence had occurred and its impact on him and his family (ROS [48]). In that respect, the offender, who was 49 at the time of sentencing, lived with his "supportive wife and children" and was self-employed (ROS [50]-[51]). However, he was not satisfied that contrition or remorse had been established, within the terms of the Crimes (Sentencing Procedure) Act, s 21A(3)(i) (ROS [49]).
[2]
Disposition of the appeal
Accepting, as is conceded, that the sentencing judge's evaluations as to the objective seriousness of each of the Sequence offences are justified, there remains the question whether the aggregate sentence was manifestly excessive. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [12], Gleeson CJ acknowledged the potential relevance of comparative sentences for an appellate court when considering whether a sentence, in the case of an offender's appeal, is manifestly excessive. In making comparisons for that purpose, it is necessary to articulate any underlying unifying principle. In assessing whether a sentence is manifestly excessive, the question is not whether the appellate court would have exercised its discretion in a manner different from that in which the sentencing judge did, or whether the sentence is markedly different from sentences that have been imposed in other cases. As was said in Wong by the plurality at [58], intervention is warranted "only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons".
The principal offence is the possession of the firearms, which was not associated with any other illegal activity. They were not intended for sale (cf Dionys, Lachlan) or held on behalf of someone else for use in unlawful activities (cf El Jamal). The firearms were the two pen guns inherited from his father and brother and the remaining low-calibre hunting rifles. The applicant's possession of them for a period of over 10 years was undoubtedly a serious breach in circumstances where he appreciated that he did not have a licence and that it was unlawful to possess them. Although the firearms were kept in the locked box, there remained a residual risk that they might get into the hands of others. Fortunately, that risk did not come to pass in the 10 years that the guns were held.
What is clear, however, is that the offence would have been far more serious had it involved holding firearms for the purpose of sale or storage for reason that, in such a case, the risk that the firearms might end up in the hands of criminals, and be used to perpetrate crimes of violence, is foreseeable and a likely outcome of the possession.
The sentencing principles informing the sentences imposed in Cromarty (albeit before the standard non-parole period was introduced), Taylor and Weaver acknowledge and accommodate the distinction between the purpose of the possession addressed in cases such as Brown and Lachlan, and a purpose which does not of its nature increase the likelihood of the firearms being used by third parties in crimes of violence. That distinction is reflected in the lower range of sentences imposed in those cases as compared to Brown and Lachlan.
Recognising the same principles in the applicant's case undoubtedly required that he spend time in prison, principally as a general deterrent to others from engaging in the same conduct. However, a starting sentence after the plea discount of 5 years and 9 months for the s 51D(2) offence was manifestly excessive, noting that the substantially equivalent sentences in Taylor and Weaver were 4 years and 6 months and 4 years and 4 months, respectively. That is so in circumstances where the applicant's subjective case was strong. There was a low risk of reoffending, good prospects of rehabilitation, and a finding that he did not otherwise represent any risk to the community.
The sentence imposed on 16 September 2019 should be quashed. Notwithstanding the delay in prosecuting the appeal, the interests of justice require that the applicant be permitted to do so. That conclusion makes it necessary for this Court to re-sentence.
[3]
Re-sentence
There is no need for me to repeat the objective facts of the two offences and the Form 1A and Form 1B matters to be taken into account, or the subjective features of the applicant's case. They are all dealt with by the sentencing judge in his remarks and for the purpose of resentencing, I adopt them as correct. I also make, for the reasons given by the sentencing judge, a finding of special circumstances.
There can be no doubt that a custodial sentence must be imposed, and I do not consider that it should be served other than by way of full-time imprisonment.
In accordance with Crimes (Sentencing Procedure) Act, s 53A(2)(b), the indicative sentence for the Sequence 1 offence, taking into account the plea discount and the Form 1A matters, is 12 months imprisonment; and for the Sequence 17 offence, again taking into account that discount and Form 1B matters, is 4 years 4 months.
Taking those sentences into account, the aggregate sentence to be imposed should comprise a non-parole period of 3 years from 12 July 2019 to 11 July 2022, and an additional term of 1 year and 10 months expiring on 11 May 2024. That means the applicant will be eligible for parole in July this year rather than July 2023.
In the result, the orders which I propose be made are:
1. Extend the time for filing of the application for leave to appeal to 1 March 2021.
2. Grant leave to appeal against the sentence imposed on 16 September 2019.
3. Allow the appeal.
4. Quash the sentence imposed on 16 September 2019.
5. Instead, impose an aggregate sentence of imprisonment of 4 years and 10 months with a non-parole period of 3 years commencing on 12 July 2019 and expiring on 11 July 2022, and an additional term of 1 year and 10 months expiring on 11 May 2024 during which the applicant shall be eligible to be released to parole subject to the decision of the State Parole Authority.
WALTON J: I agree with Meagher JA.
HARRISON J: I agree with Meagher JA.
[4]
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Decision last updated: 25 February 2022
MEAGHER JA: The applicant seeks leave pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(c) to appeal against the sentence imposed on him by Hatzistergos DCJ at the Campbelltown District Court on 16 September 2019 (R v Aird [2019] NSWDC 512 (ROS)). His application for leave to appeal against sentence was filed on 1 March 2021. The time by which that application was required to be filed (it having been extended on at least two occasions) had expired. The explanation for the further delay in filing the application is given by the applicant's solicitor in her affidavit sworn 6 July 2021. That explanation does not involve fault on his or her behalf.
The sentence
The sentencing judge imposed an aggregate sentence with respect to the two offences. That sentence was to a period of imprisonment of 6 years and 5 months, comprising a non-parole period of 4 years from 12 July 2019 to 11 July 2023, and an additional term of 2 years and 5 months from 11 July 2023 to 11 December 2025.
The applicant pleaded guilty and was afforded an early plea discount of 25%. The sentencing judge, as required by Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A, indicated the following sentences for each of the offences, taking into account the matters on the Form 1A and Form 1B and discount:
Sequence 1: 16 months imprisonment with a non-parole period of 11 months
Sequence 17: 5 years and 9 months imprisonment with a non-parole period of 3 years and 6 months
The aggregate sentence is the outcome of the exercise of applying the relevant sentencing principles to the facts of the case and the indicative sentences. In doing so, the sentencing judge acknowledged the overlapping criminality involved in the two offences by providing for a period during which the indicative sentences might otherwise have been served concurrently.
The "starting point" of the indicative sentence for the s 51D(2) offence (there being no "starting point" in respect of the aggregate sentence, as to which see Elsaj v R [2017] NSWCCA 124 at [56] per Hoeben CJ at CL), before the application of the plea discount, was approximately 7 years and 7 months.
Ground of appeal: aggregate sentence manifestly excessive
The sole ground of appeal is that the aggregate sentence is manifestly excessive.
In Hughes v R [2018] NSWCCA 2 at [86], this Court (Payne JA, RA Hulme and Garling JJ), citing various High Court authorities, described the matters to be considered where it is contended that a sentence is manifestly excessive as follows:
(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
(3) it is not to the point that this Court might have exercised the sentencing discretion differently;
(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
In relation to a manifest excess appeal from an aggregate sentence, as RA Hulme J observed in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] (omitting citations), "a principal focus in the determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved". The indicative sentences recorded in accordance with Crimes (Sentencing Procedure) Act, s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.
The applicant's counsel does not contend that the sentencing judge misstated any relevant fact or took into account any extraneous or irrelevant matter. He accepts that the primary judge fairly assessed the objective seriousness of each of the offences - although there is an issue as to how that assessment for the s 51D(2) offence is to be understood - and does not suggest that his Honour should have made any more favourable findings with respect to the applicant's subjective circumstances.
Ultimately, the applicant's argument is that the aggregate sentence is manifestly excessive having regard to the totality of the criminality involved in his offending (tcpt 14/07/21 p. 2:45). That outcome is said to be apparent in the starting points for each of the indicative sentences before the plea discount - 21 months for the Sequence 1 offence and approximately 7 years and 7 months for the Sequence 17 offence.
The seriousness of firearm offences
The objects of the Firearms Act 1996 include to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances; to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm; and to ensure that firearms are stored and conveyed in a safe and secure manner (ss 3(2)(a), (c), (e); see also R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515 at [15]-[25], which includes reference to the second reading speech introducing s 51D in 2002).
Under s 51D(1), the possession of more than three firearms is an offence if the firearms are not registered and the person is not authorised by a licence or permit to possess them. The maximum penalty for that offence is 10 years imprisonment. Section 51D(2) makes it an offence to possess more than three firearms, "any one of which is a prohibited firearm or pistol", if the firearms are not registered and the person not licensed.
In R v Brown [2006] NSWCCA 249 at [22], Spigelman CJ (Howie and Rothman JJ agreeing) described the maximum sentence for the offence under s 51D(2) as reflecting the role which "persons who are engaged in the warehousing of firearms for sale" play in the "perpetration by other criminals of the worst crimes of violence in this community"; and (at [20]) as confirming that the offence is one which the legislature regards with considerable gravity. In that case, the offender was the warehouser of a large number of prohibited weapons which he bought and sold to criminals. His substantive appeal against a sentence of 8 years with a non-parole period of 5 years (after a plea discount of 15%) was dismissed.
In the Chief Justice's reasons, a comparison of the circumstances in that case to those in R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515 was rejected. That case involved a "licensed gunsmith who had collected firearms over a considerable period. There was no evidence that he had any intention of selling the firearms into the black market", and accordingly Cromarty was said to be materially different (Brown at [25], [26]).
Mr Cromarty was a long-term licensed gun dealer whose residence in a suburb of Newcastle was found to house "a large number of weapons, including prohibited weapons" which the police described as the "largest cache of weapons" ever taken from a private individual in Australia. All but a few of the weapons were in working order and were found with ammunition. The prohibited weapons included two automatic sub-machine guns (Cromarty at [10]-[12]). Two matters taken into account on a Form 1 were the possession of ammunition, and failure to keep a firearm safe contrary to Firearms Act, s 39(1)(a) (Cromarty at [3], [38]).
In response, the Crown submits that whilst the aggregate sentence may be regarded as a "stern" one, it was nevertheless open to his Honour in the exercise of his discretion. (tcpt 14/07/21 p. 8:49). In the Crown's written submissions, the matters making the offence a "very serious" one are said to be (RWS [61(c)]):
There were nine firearms in total. Four were prohibited. There were two semi-automatic weapons and the two pen guns (which are items capable of easy concealment and thus suited to criminal activity). They were not adequately securely stored and were stored immediately proximate to ammunition. None of them were registered and the offender was well aware he was not licensed to possess them in circumstances where his licence had previously been revoked.
Before addressing the ground of appeal, I propose to record the circumstances of the offending, consider five decisions of this Court which address the nature and seriousness of offences under Firearms Act, s 51D(2), and then to summarise briefly the sentencing judge's remarks concerning the objective seriousness of the offending and the applicant's subjective factors as taken into account.
The Crown's manifestly inadequate sentence appeal in relation to the s 51D(2) offence was upheld. The sentence originally imposed, following a 25% plea discount, was 3 years with a non-parole period of 2 years to be served (with other sentences) by way of periodic detention. This Court allowed the appeal, quashed the sentence and imposed a sentence of 4 years with a non-parole period of 2 years.
As Johnson J said in Taylor v R [2018] NSWCCA 50 at [59], an offence under s 51D(2) may be committed in a wide range of circumstances. That case, like the present one, did not involve any warehousing of firearms for sale (cf Dionys v R [2011] NSWCCA 272; (2011) 217 A Crim R 280, esp. at [50]) or holding of the firearms on behalf of someone else for use in their unlawful activities (cf El Jamal v R [2017] NSWCCA 243, esp. at [9], [20]).
In Taylor, the offender was in possession of a number of unregistered firearms without a licence. Some of the firearms were "prohibited", a number were found loaded, and more than 500 rounds of ammunition was also found in his rented house on what was referred to as a "semi-remote rural location" (at [47]). The guns "had belonged to his father who had died the previous year" (at [14]). The offender acknowledged that he should have had a licence. None of the firearms was specifically secured. Some were found inside a wardrobe under a blanket.
The offender was sentenced for the s 51D(2) offence to imprisonment for 4 and a half years, with a non-parole period of 2 years and 6 months. (The sentence was imposed after a guilty plea. However, the report does not indicate what discount was provided for the utilitarian value of that plea.) His manifest excess appeal was dismissed, that sentence described as being "well open to the sentencing judge in the exercise of discretion" (at [71]).
In relation to the range of circumstances in which s 51D(2) might be engaged, Johnson J said (at [59]):
The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s 51D is not limited to the punishment of criminals who warehouse and harbor illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty (2004) 144 A Crim R 515; [2004] NSWCCA 54 at 531 [86]. This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms: R v Cromarty at 531 [86].
The factors his Honour considered relevant to the assessment of the seriousness of the offending in that case included the offender's significant criminal history for firearms offences; the immediate proximity of the ammunition to the firearms; the fact that all of the firearms were in working order and that none was stored securely, with several being loaded; and the fact that the offender was aware of the illegality of his behaviour (at [61]-[63]).
In R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277, this Court (Gleeson JA, Johnson and Garling JJ) allowed a Crown appeal against the manifest inadequacy of two sentences for firearms offences, the principal offence being the unauthorised possession of more than three firearms, one of which was a prohibited firearm, contrary to Firearms Act, s 51D(2).
The four relevant firearms (three shortened shotguns and a shortened rifle) were in working order (Lachlan at [12]), two were loaded, and two were found in a sports bag with a substantial quantity of ammunition (at [46]). The agreed facts included that the offender was engaged in buying and selling firearms, ammunition and other weapons for financial gain, and it was not controversial that "shortened firearms have no legitimate purpose but by reason of ease of concealment are suited for serious criminal activity" (at [46]). The offender also had a previous conviction for similar related firearms offences.
The sentence appealed from was, after an early plea discount of 25%, a head sentence of 3 years and non-parole period of 2 years. On re-sentencing, after the 25% discount, the head sentence was increased to 5 years and 3 months (a starting sentence of 7 years before the discount) and the non-parole period to 3 years.
Most recently, in Weaver v R [2021] NSWCCA 215, the offender appealed, including on the ground of manifest excess, against an aggregate sentence imposed for two firearms offences, the principal one being an offence under s 51D(2). The offender was in possession of 31 unregistered firearms, 7 of which were "prohibited" firearms (at [36]). Some were loaded. The firearms were "stockpiled" on a rural property and had been for a considerable time (at [44]). Significantly, the evidence was that the offender's purpose for stockpiling firearms was that he "believed in external threats" and accordingly had no intention of surrendering the firearms (at [43]). Finally, there was no suggestion that the firearms were connected with any trade in illicit substances or for that matter with any other illegal activity (at [43]).
The aggregate sentence imposed for the s 51D(2) offence and the second offence of possessing a shortened firearm contrary to Firearms Act, s 62(1)(b) was 4 years and 4 months imprisonment with a non-parole period of 2 years and 7 months. The sentencing judge had allowed a 25% discount. This Court (Garling J, with whom Simpson AJA and N Adams J agreed) was not persuaded that sentence, "although stern, was manifestly excessive".