Athos v R

Judgment 1BEAZLEY P: I agree with Price J. 2JOHNSON J: I agree with Price J. 3PRICE J: Nicholas Athos, the applicant, seeks leave to appeal against the sentence imposed upon him by Marien DCJ (the judge) in the District Court at Sydney on 25 October 2012. 4The applicant had pleaded guilty in the Local Court to seven charges. Charge 1 was an offence of possession of a pistol, namely a Smith and Wesson revolver, not being authorised to do so by a licence or permit, contrary to s 7 Firearms Act 1996; charges 2 and 3 were each an offence of possession of a prohibited firearm, namely a bolt gun, not being authorised to do so by a licence or permit, contrary to s 7 Firearms Act; charge 4 was an offence of possession of a prohibited weapon, namely handcuffs, without being authorised to do so by a permit, contrary to s 7 Weapons Prohibition Act 1998; charges 5 and 6 were each an offence of possession of a prohibited weapon, namely a detachable firearm magazine, without being authorised to do so by a permit, contrary to s 7 Weapons Prohibition Act; and charge 7 was an offence of possession of a prohibited weapon, namely a silencer, contrary to s 7 Weapons Prohibition Act. 5The maximum penalty for an offence contrary to s 7(1) Weapons Prohibition Act is 14 years imprisonment. A standard non-parole period of 3 years imprisonment has been prescribed. The maximum penalty for an offence contrary to s 7(1) Firearms Act is also 14 years imprisonment with a 3 year standard non-parole period. 6The judge was asked to take into account on sentence eight matters that had been placed on a Form 1. These matters were: Possession of a barrel for a prohibited weapon without being authorised to do so by licence or permit, contrary to s 58(2) Firearms Act. Three charges of possessing a barrel for a firearm without being authorised to do so by a licence or permit, contrary to s 58(1) Firearms Act; Possession of ammunition without holding a licence, permit or authority, contrary to s 65(3) Firearms Act; Having in his possession property, namely a GPS unit, reasonably suspected of being stolen or unlawfully obtained, contrary to s 527C(1)(a) Crimes Act 1900; and Two charges of being in possession of a prohibited drug, namely an unspecified quantity of methylamphetamine and unspecified quantity of cannabis, each contrary to s 10(1) Drug Misuse and Trafficking Act 1985. 7The applicant was sentenced as follows: Charge 4 (handcuffs): sentenced to a fixed term of imprisonment of 12 months commencing on 5 May 2011 and expiring on 4 May 2012. Charge 7 (silencer): sentenced to a fixed term of imprisonment of 18 months, commencing on 5 May 2011 and expiring on 4 November 2012. Charges 5 and 6 (magazines): sentenced to concurrent fixed terms of imprisonment of 2 years commencing on 5 November 2011 and expiring on 4 November 2013. Charges 2 and 3 (bolt guns): sentenced to concurrent fixed terms of imprisonment of 2 years commencing on 5 May 2012 and expiring on 4 May 2014. Charge 1 (revolver) including matters on Form 1: sentenced to 5 years imprisonment commencing on 5 May 2012 and expiring on 4 May 2017, with a non-parole period of 3 years expiring on 4 May 2015. 8As a result of partial accumulation and concurrence, the total effective sentence was 6 years commencing on 5 May 2011 and expiring on 4 May 2017 with a non-parole period of 4 years commencing on 5 May 2011 and expiring on 4 May 2015. The earliest date that the applicant is eligible to be released on parole is 4 May 2015. 9The judge had discounted the sentence by 25 per cent for the utilitarian value of the pleas of guilty. His Honour found special circumstances permitting a variation in the statutory ratio between the total sentence and non-parole period being that the applicant was serving his first custodial sentence, a part of which was to be served in protective custody and his psychological state. The Grounds of Appeal 10The notice of appeal identifies four grounds: Ground 1: His Honour erred in holding that, due to the nature of the offences, the applicant's prior good character was not to be accorded as great a weight as may be afforded for other offences. Ground 2: His Honour erred in finding that, in the case of all of the offences, the objective seriousness fell within the upper range, because of, inter alia, the quantity of items involved. Ground 3: In concluding that the Court could not make a finding that the applicant had favourable prospects of rehabilitation, his Honour erred in giving conclusive weight to the finding that the applicant had not given truthful evidence concerning the circumstances surrounding his offending. Ground 4: The applicant has a justifiable sense of grievance in the light of the sentences imposed upon the co-offender, Tuhukava. Facts 11An agreed statement of facts was tendered which the judge recounted in his remarks on sentence (ROS 3-5): "...during February and March 2011 Queensland police were electronically monitoring the co-offender, Matahiva Tuhukava, in relation to his possession and use of an iPhone stolen during the course of an armed robbery in February 2011 in Queensland. Shortly after, the offender before me, Mr Athos, moved from Queensland to New South Wales. On 22 March 2011 the co-offender Tuhukava attended Miranda Police Station to hand himself in to police in relation to unrelated matters and he was remanded in custody. On 24 March 2011 Tuhukava telephoned the offender from custody. The offender informed Tuhukava that an associate, Michael Urbiztondo, was going to Queensland to collect him and drive him down to New South Wales as he was relocating back to New South Wales. The offender told Tuhukava the reason for this was because he had "a lot of shit to put in the car" and that he could not take it by plane. The offender then resided with his grandparents in Miranda, being a suburb of Sydney. On 27 March 2011 Urbiztondo drove the offender down from Queensland to New South Wales. The offender brought firearms and ammunition with him. The New South Wales police were then alerted and commenced monitoring the offender Tuhukava, Urbiztondo and the man William Siryani. At about 6.42pm that day Tuhukava telephoned the offender who was with Urbiztondo at the time. When Tuhukava asked the offender about the bag containing firearms the offender asked, "Which one?" Tuhukava replied, "My one". The offender confirmed he had brought it. Tuhukava then told Urbiztondo that he was going to grab the bag for "something". At 9.09pm the offender telephoned the co-offender referring to him as "Usi" and confirming meeting the next day. At 10.40am on Thursday 5 May 2011 surveillance police observed the co-offender leave his residence and take a taxi to the Mug Shots Café attached to the Speedway service station on Captain Cook Drive, Caringbah. There the co-offender Tuhukava met Urbiztondo and the man Siryani. The cafe was owned by Siryani and operated by Urbiztondo. At 11.06am Tuhukava telephoned the offender and spoke in what the facts describe as 'Pig Latin'. He asked the offender, "You know what we were talking to you the other day, yeah, can you bring it down to where we are, the akbay (slang for bag) of the ungdrays (slang for guns)." After the offender confirmed he would come, Tuhukava sent him a text saying, "All the bags please, everything, thanks Malaka". The offender replied, "There's only one bag, chief" and Tuhukava replied, "Okay". At 12 noon the offender was driven to the café by his grandfather. He took two bags out of the car and walked into the café carrying the bags. Tuhukava and Urbiztondo were inside the café at the time and Siryani was outside by the car wash. The offender placed the two bags on the floor near the counter and went behind the counter to make himself a drink. The police then entered the café and identified themselves. When the offender was asked what was in the bags he admitted the bags contained guns and ammunition that he had brought down from Queensland. Inside a blue bag police located a radio, earpiece and a Navman GPS, an unloaded 38 special calibre Smith and Wesson revolver without a serial number and documents identifying the offender. Inside a black and red bagpolice located ninety-six rounds of thirty-eight special ammunition, forty-eight rounds of 9 millimetre ammunition, forty-two rounds of twenty-five auto ammunition, forty-six rounds of thirty-eight auto ammunition, 133 rounds of 40 calibre ammunition, 643 rounds of 22 calibre ammunition, ninety-one rounds of 45 auto ammunition, two magazine holders with two empty magazines for a .40 Smith and Wesson, a firearm holster, a firearm cleaning kit, handcuffs, two single shot pen pistols without serial numbers, .22 short/long rifle barrel, two 32 calibre barrels from a single shot pen pistol without serial numbers that could be fitted to the pen pistols that were located, and a .22 long rifle calibre barrel. The offender, Tuhukava and Siryani were arrested. Urbiztondo was arrested on 10 May 2011. The offender agreed to participate in a recorded interview with the police. In this ERISP he admitted possession of the firearms and ammunition and admitted he brought them down from Queensland about five weeks prior. I shall in these reasons refer in more detail to what the offender said in that interview with the police. In a search warrant executed where the offender was residing with hisgrandparents, police located a box containing twenty-five rounds of 12 gauge buckshot live cartridges, four .22 calibre live ammunition, one .22 calibre used round, four .38 calibre live rounds and a barrel capable of being used as a firearm silencer." 12In a tendered expert's certificate, Matthew Bolton, a ballistics investigator, found that the .38 special calibre Smith and Wesson six chamber revolver was in working order and capable of propelling a projectile that could inflict a lethal wound upon a human being. The two bolt guns were also found to be in working order and were capable of inflicting a lethal wound upon a human being. The applicant's record of interview 13On the day of his arrest, the applicant entered into a record of interview with police. It is only necessary to refer to those parts of the interview that bear upon the grounds of appeal. 14The applicant told police that he had collected the bags (containing the firearms and ammunition) from the National Park near Grays Point that morning. He had buried the bags about a month or five weeks previously, which was about a couple of days after he returned from Queensland. 15The record of interview includes the following questions and answers (Q&A 172-174): "Q172 And what were you told when you grabbed it like, when you were given the firearm and the contents, what were you told? A. I wasn't told anything, just, it's none of my business. Q173. Why would someone give you a firearm? A. Because I'm a reliable bloke." 16The applicant said that he was given the firearm in New South Wales in 2008 and had it since that time. He declined to tell the police how the firearm got to Queensland and where he had stored it. The applicant's evidence before the judge 17In his evidence before the judge, the applicant said that he had the .38 revolver for five weeks and the red bag with the ammunition, handcuffs and gun cleaning kit for close to 12 months. He said that a firearm was not a dangerous weapon if it is "in the hands of good people, only when it's in the hands of irresponsible people can damage be done" (T13/09/12 T4 L33-34). He said he was very reckless in not taking into consideration where the items would have ended up down the track. The applicant gave the following evidence in answer to questions from the judge (T13/09/12 T4 L44-50, T5 L1-25): "Q. Mr Athos, where did you think they were going to go? You've said on a number of occasions I think to the psychologist and to the probation officer that you were just - you were holding them for someone, you were a custodian of these firearms? A. Yes. Yes, your Honour. Q. Well that means you are going to pass them on to someone? A. Yes. Q. Who were you going to pass them on to? A. I can't really say, your Honour, because I fear for my safety, and that's always been the case. Q. Are they persons with criminal backgrounds, is that why you fear for your safety? I am not asking you who they are, I'm simply saying is that the reason that you fear for your safety, that they are people with criminal backgrounds? A. Yes. Q. Well then if you're going to give these firearms to someone with a criminal background what did you think was going to happen with them? A. That's where I was reckless, your Honour, I didn't think that far ahead. I didn't think it was my business. Q. Are you seriously saying to me that you didn't think that far ahead, that if you give these firearms and ammunition to people with criminal backgrounds that you didn't think about what might happen, where they might end up, that they could be used in criminal activity? You didn't think of that? A. No, that's where I was reckless, your Honour. Q. What did you think they were going to do with them, polish them and clean them? A. I didn't think that far I'm sorry." 18In cross-examination by the Crown Prosecutor, the applicant said that he knew that the firearms and ammunition were prohibited items. He denied that he was receiving any benefit for holding onto these items in order to deliver them to someone. It was his evidence that "[i]t was just a foolish favour" (T13/09/12 T9 L45-48). On this topic, the applicant gave the following further evidence (at T13/09/12 T11 L5-14): "Q And yet you were prepared to just hand over a bag full of firearms and ammunition to a person who you knew had a criminal history of assaults, do you agree with that? A. I do, because I was reckless. Q. It's more than reckless, you were actually a party to acts of violence - or potential acts of violence and aggression, you'd agree with that? A, I do, but I don't think it's fair to be persecuted for an offence I had no knowledge of, if there was an offence to begin with, that was going to be committed." 19A report dated 14 June 2012 from Sam Borenstein, a clinical psychologist, was placed before the judge. Mr Borenstein reported that the applicant told him that he was given the guns to mind, they were in his house, and he was holding onto them for someone. Mr Borenstein recounted that the applicant denied "knowing what the weapons might be used for. [The applicant] states that he became caught up in events and he acted as a delivery person" (AB 166). Some findings by the judge 20During submissions, the applicant's counsel informed the judge he had been instructed that the applicant did not bury the items in the National Park, but had said that he had to protect his grandfather from being implicated as the weapons and ammunition were kept by the applicant at his grandfather's home. 21The judge placed little weight on the applicant's account in the ERISP noting that the applicant "admitted to police that he lied about certain matters in the interview but it is very unclear from the interview as to which matters he was saying he was lying about" (ROS 9). His Honour observed that whilst the applicant continued to assert in his sworn evidence that "he was merely a custodian of these firearms, prohibited weapons, and an enormous quantity of ammunition, he agreed that he intended to pass them on to persons who he knew had criminal backgrounds. Indeed, in his cross-examination by the Crown, he agreed that he knew that the co-offender Tuhukava, who he was handing the weapons to, had a criminal record for assaults" (ROS 10). 22His Honour was unable to accept the applicant's assertion "that he did not consider that by handing over what he agreed was an arsenal of weapons and ammunition to men who he knew had criminal backgrounds, that these items might be used in criminal activity" (ROS 11). His Honour did not accept that the applicant's role was merely as a custodian of these weapons and his possession of them was nothing more than a foolish favour. Given his findings as to the lack of credibility of the applicant both in his ERISP and in his evidence, his Honour was unable to determine what were the true circumstances in which the applicant came to be in possession of the weapons and ammunition. The judge was satisfied beyond reasonable doubt that the applicant would have been fully aware that by handing over the weapons and ammunition to these associates with criminal backgrounds, as he intended to do, that there was a real chance that these weapons would be used in criminal activity. Personal Circumstances 23The applicant was born on 21 March 1985 and was 27 years old when sentenced. He did not have any criminal antecedents. 24When referring to the applicant's background, Mr Borenstein stated in his report that he had treated the applicant as a child on a referral from the Family Law Court who held concerns about the applicant's psychological state as a result of his parent's separation and changed living circumstances. The applicant was raised predominantly by his father. Mr Borenstein reported that the applicant had responded favourably to counselling. 25He left school midway through Year 11 and took up a traineeship in hospitality for six months. He had worked at various jobs including as a bicycle courier for Australia Post and in a call centre for Taxis Combined. Mr Borenstein noted that the applicant has a long-standing history of depressed mood, anxiety and panic which dates to childhood. The applicant's current diagnosis, Mr Borenstein opined, is that of Chronic Adjustment Disorder with mixed Anxiety and Depressed Mood. 26The psychologist expressed the following opinion as to the applicant's prospects of rehabilitation (at AB 167): "[The applicant's] prospect for rehabilitation is sound. He impressed as highly motivated to ensure the type of behaviour which brought him to prison is never repeated. He has a definite plan, and is party to a very supportive relationship, very different from those of the past, 'this one's a good girl'. [The applicant] appreciates and understands the seriousness of his offences. [The applicant] insists he was the custodian of the weapons, and had no idea of how they were intended to be used." 27Mr Borenstein stated that with further counselling the likelihood of the offending being repeated was extremely low. 28Sapfo Sakis, the applicant's girlfriend, told the judge that the applicant was a sweet, caring person. They had been planning to buy a house together and to get married. She said that the applicant had the support of his family. 29A Probation and Parole report was tendered in which the author of the report noted that the applicant has a long history of depression and anxiety with associated panic attacks. The author observed that the applicant accepted responsibility for his offending behaviour, but "continues to be guarded with respect to some details of the current offences and did not provide an explanation, which clarifies his involvement in the possession of numerous weapons, other than his actions were 'naïve and stupid'" (AB 154). Ground 1: His Honour erred in holding that, due to the nature of the offences, the applicant's prior good character was not to be accorded as great a weight as may be afforded for other offences. 30The applicant submitted that the judge erred in giving reduced weight to the applicant's prior good character. The Court's attention was drawn to the following passage in the judge's remarks on sentence (ROS 20): "The [applicant] has no criminal record. Whilst that entitles him to leniency, the weight to be given to his prior good character for offences of this kind is not, in my view, to be accorded as great a weight as may be afforded for other offences. This is because a person of prior good character is less likely to come under the notice of police and, therefore, it might be expected less likely to be detected by police in possession of firearms and prohibited weapons. But he is entitled to a reduction in the sentence that I would otherwise impose upon him because of his prior good character." 31It was contended that his Honour's conclusion that good character might be used by persons to enable weapons to be transported was purely speculative. The applicant argued that there was no material to suggest that persons, in general, let alone the applicant, are selected to transport firearms, because of a lack of a criminal record. The applicant's reason on the evidence that he was selected for his role was because he was "a reliable bloke" (ROS 7). In the absence of evidence that either the applicant or Tuhukava exploited the applicant's good character, it was submitted that his Honour erred in giving reduced importance to the applicant's good character. 32In oral submissions, the applicant argued that the judge had erred by stating there was a general principle that less weight is to be afforded to good character for offences of possession of firearms and prohibited weapons. The applicant accepted that this argument would be diminished if the judge had given less weight to the applicant's good character for reasons based on the evidence. 33The Crown submitted that it was within the judge's discretion to determine the weight to be given to evidence of good character. The Crown referred to the objective seriousness of the offences and to general deterrence being an important factor. The Crown reminded the Court that a complaint about the attribution of weight to a particular sentencing factor does not ordinarily give rise to an error that enlivens appellate intervention. 34In oral submissions, the Crown contended that the judge's finding related to the case and his findings of fact in relation to the applicant. It was appropriate to give less weight to good character in the circumstances of the applicant. Decision 35The lack of a record of previous convictions and good character are identified in ss 21A(3)(e)-(f) Crimes (Sentencing Procedure) Act 1999 as mitigating factors that a sentencing judge is obliged to take into account in determining the appropriate sentence for an offence. If an offender is a person of good character, the weight to be given to that factor is a matter for the sentencing judge and may vary according to all the circumstances including the nature of the offence: Ryan v R [2001] HCA 21; (2001) 206 CLR 267; (2001) 118 A Crim R 538 [25], [143]. 36There are certain categories of offences where it has been held that limited weight may be given to good character. These offences include: