Barnes v R

Court of Criminal Appeal (NSW)|2021-11-12|Before: Macfarlan JA, Rothman J, Dhanji J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2019/246999; 2019/232275; 2019/125799; 2019/212589 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 11 September 2020 Before: Hock DCJ File Number(s): 2019/246999; 2019/232275; 2019/125799; 2019/212589

Judgment

MACFARLAN JA: I agree with Dhanji J.
ROTHMAN J: I agree with Dhanji J.
DHANJI J: The applicant, Mr Reece George Barnes, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Hock DCJ in the District Court at Sydney on 11 September 2020.
The applicant pleaded guilty in the Local Court on 28 May 2020 to the following offences: Seq 1: Possess shortened firearm without authority contrary to s 62(1)(b) of the Firearms Act 1996 (NSW) (maximum penalty of 14 years imprisonment); Seq 2: Robbery while armed with a dangerous weapon, being a firearm, contrary to s 97(2) of the Crimes Act 1900 (NSW) (maximum penalty of 25 years imprisonment); Seq 3: Knowing Police were in pursuit, did not stop and drove dangerously contrary to s 51B(1) of the Crimes Act (maximum penalty of 3 years imprisonment).
The following three offences were taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") in relation to the armed robbery offence: 1. Unlawfully obtained goods in personal custody contrary to s 527C(1)(a) of the Crimes Act (maximum penalty of 6 months imprisonment); 2. Larceny contrary to s 117 of the Crimes Act (maximum penalty of 5 years imprisonment); 3. Use vehicle with unauthorised number plate contrary to cl 129(1) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW) (maximum penalty of 20 penalty units).
The following five offences were taken into account on a Form 1 in relation to the police pursuit offence: 1. Damage property contrary to s 195(1)(a) of the Crimes Act (maximum penalty of 5 years imprisonment); 2. Two offences of unlawful entry to inclosed lands contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW) (maximum penalty of 5 penalty units); 3. A further police pursuit offence, not stop, drive dangerously contrary to s 51B(1) of the Crimes Act; 4. Use vehicle with unauthorised number plate contrary to s 129(1) of the Road Transport (Vehicle Registration) Regulation.
The applicant was also sentenced for a related offence of unlawful possession of property contrary to s 527C(1)(a) of the Crimes Act pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) ("s 166 certificate"). That offence carries a maximum penalty of 1 year imprisonment as the item in question was a motor vehicle.
The applicant was sentenced to an aggregate term of 10 years imprisonment commencing on 8 August 2019 and expiring on 7 August 2029 with a non-parole period of 6 years and 6 months expiring on 7 February 2026. The indicative sentences were as follows: Seq 1: 4 years imprisonment; Seq 2: 7 years 6 months imprisonment; Seq 3: 2 years imprisonment; S 166 certificate: 6 months imprisonment.
The applicant seeks leave to appeal on the following grounds (amended with leave to include ground 3): "1. Her Honour erred in the assessment of the objective seriousness of the firearm offence. 2. The sentence is manifestly excessive. 3. The court proceeded on an erroneous view of the facts, as the [applicant's] PTSD and the sequelae of childhood sexual abuse was not diagnosed or disclosed at the time of sentence."
In respect of ground 3, the applicant sought to rely on evidence relating to the applicant's post-sentence disclosure of child sexual abuse that was not before the sentencing judge. Appreciating the limitations on such a course the applicant, in the alternative, relied upon on the evidence on the "usual basis". That is it was relied on in the event that the Court proceeded to resentence the applicant as a result of success on either of grounds 1 or 2. In those circumstances, it is convenient to defer consideration of this matter until it has been determined whether error is established under grounds 1 or 2.

Factual background

The following summary is derived from the statement of agreed facts tendered at the proceedings on sentence on 21 August 2020.

Seq 1: Possess shortened firearm

On 25 January 2019, the applicant was released from custody on parole in relation to offences of discharging a firearm in or near a public place and possession of an unauthorised firearm. He had previously been on parole in relation to these offences, however, his parole was revoked on 21 September 2018 due to fresh charges which were ultimately withdrawn. His parole period for the two firearms offences was due to expire on 9 April 2019.
On 19 March 2019, the applicant was served with a Firearms Prohibition Order and a Weapons Prohibition Order. He was, at that time, residing at King Creek, New South Wales with his partner, mother and grandmother.
On 27 March 2019, police attended that residence. The applicant was not home and the police officers left a business card with the applicant's mother. They returned later that day to conduct a search of the premises pursuant to the Firearms and Weapons Prohibition Orders.
In the backyard, under a pot plant, police found a piece of PVC piping covered in black paint and sealed with covers on each end. The police business card given to the applicant's mother that morning was next to the pipe.
The PVC piping contained a sawn-off .22 bolt action rifle (the weapon subject of the possess shortened firearm offence) with a partial serial number wrapped in a white T-shirt. Police also found a black pistol receiver, a black crossbow receiver, a firearm trigger, 7 rounds of .22 ammunition and 59 .22 long rounds. A vehicle on the premises contained a receipt for PVC piping, PVC caps and black spray paint purchased on 26 March 2019. CCTV footage of the applicant purchasing these items was also obtained.
It appears the applicant was still absent from the premises at the time the above items were found, and consequently was not arrested at this time.

Seq 2: Robbery armed with dangerous weapon

In June 2019, the applicant contacted the victim of the second offence (robbery armed with a dangerous weapon) in relation to a vehicle the victim had listed for sale online. The applicant said his name was "Frankie".
On 4 June 2019, the applicant met the victim at a factory in Caringbah, New South Wales. The applicant was driving a Toyota RAV4 and was accompanied by his partner. The applicant asked to test drive the vehicle and asked his partner to attend an ATM to withdraw cash while he did so.
The applicant commenced test-driving the vehicle with the victim in the passenger seat and the applicant's partner following in the RAV4. After driving for a short time, the applicant pointed to the centre console and said, "what's that?" When the victim looked at the console the applicant grabbed the victim's mobile phone and pointed a "silver coloured pistol" with a "long barrel" at him. The applicant said, "Get the fuck out of the car or I'll shoot you."
The victim exited the vehicle and the applicant said, "close the fucking door". The victim refused to do so and asked for his mobile phone. The applicant pointed the gun at him and told him to "Close the fucking door". The victim closed the car door and the applicant drove away. This was the conduct subject of the robbery armed with a dangerous weapon offence. The Crown conceded that it could not prove beyond reasonable doubt that the weapon used in this offence was a genuine firearm.
On 30 June 2019, the applicant was seen driving a silver Toyota Landcruiser with one licence plate into a service station in Port Macquarie. This was the licence plate offence attached on the Form 1. The applicant's partner filled the car with $198.76 of petrol and they left the service station without paying. This was the Form 1 offence of larceny taken into account in relation to the robbery offence.

Seq 3: Police pursuit

On 8 July 2019, police attended the applicant's mother's home and saw the applicant sitting under an awning outside the residence. The police officers called out to the applicant as they approached. The applicant ran away from police and absconded in a Toyota Landcruiser. Two police vehicles pursued him. The applicant drove off the road and collided with a timber and wire farm fence. The vehicle lost traction and a police officer alighted from his vehicle to attempt to arrest the applicant. The applicant's vehicle then broke through the wire fence, causing it to recoil and narrowly miss the police officer. The applicant then drove through a grass paddock (on private property) and through another fence onto a different property.
The applicant then drove along an 80km/h road at speeds of between 90km/h and 120km/h. He later drove onto the wrong side of the road over unbroken double lines on a right-hand turn. Police observed the applicant crossing onto the wrong side of the road on the verge of a hill to overtake another vehicle. The pursuit was terminated as a result of his dangerous driving. The applicant was later seen overtaking a semi-trailer on the wrong side of the road. Another vehicle was forced onto the gravel road shoulder in order to avoid a collision. This was the police pursuit subject of seq 3.
While driving through private property in the course of seq 3, the applicant damaged a copper water pipe which cost $762 to repair. This conduct constituted the Form 1 offences of damage property and two offences of unlawful entry into inclosed lands.
On 8 August 2019, a search warrant was executed at a property in Moorland, New South Wales. The applicant was arrested. A Toyota RAV4, which had been reported stolen in mid-May 2019, was found on the property along with a vehicle canopy stolen from the victim of the armed robbery offence. This was the s 527C(1)(a) offence of unlawful possession of property (the RAV4 vehicle) in the s 166 certificate.
The RAV4 vehicle was found to contain four sets of stolen licence plates, a "roof top basket" and "side awning" stolen from a vehicle in the Port Macquarie area in the previous week and a BMW branded car key. This was the property subject of the Form 1 offence of unlawfully obtained goods in personal custody (on the Form 1 in relation to the robbery offence).
The further offences taken into account on the Form 1 in relation to the police pursuit offence occurred earlier in time, on 3 July 2019. On that date the applicant was seen by police driving a Toyota Landcruiser in a McDonalds drive-through. The Landcruiser displayed plates which had been stolen from another vehicle several days earlier. This was the offence of using a vehicle with unauthorised number plates taken into account on the Form 1 in relation to the police pursuit offence.
As police approached the car in the drive-through area the applicant accelerated away and a police pursuit was initiated. The applicant reached speeds of 100km/h in a 50km/h zone and was seen to enter and use a roundabout in the wrong direction. He narrowly avoided an oncoming vehicle, which had to pull over to avoid a collision and then narrowly avoided colliding with an ambulance. The police pursuit was abandoned as a result of the applicant's dangerous driving. This was the police pursuit offence taken into account on the Form 1 in relation to the principal police pursuit offence.

Proceedings on sentence

Proceedings on sentence were conducted on 21 August 2020. The Crown bundle contained the notice of committal, charge certificates, Form 1s, s 166 certificate, agreed facts in relation to each offence, the applicant's custodial record and his criminal record in New South Wales and Queensland. The defence bundle contained a report of Dr Richard Furst, forensic psychologist, dated 9 August 2020, the applicant's medical records, three character references and a letter from the applicant to the Court.
Counsel for the applicant conceded that there was no legitimate reason for the possession of a firearm but submitted that there was no evidence regarding the length of time the applicant possessed the firearm, noting that he only purchased the PVC piping the day before the firearm was found. It was submitted that the firearm was not on the applicant's person and was to some degree concealed on a rural property. It was further submitted that the firearm was not loaded and there was no evidence that it was in working order, which mitigated the seriousness of the ammunition found with the firearm. Counsel for the applicant noted that it was not a prohibited firearm, even when shortened, and was not automatic or semi-automatic. It was further submitted that the provision contemplated both possession and supply of a firearm with no differentiation in maximum penalty and that an offence of supply should be considered more serious.
The report of Dr Furst set out the applicant's personal background including that he was born in Blacktown, New South Wales and did not report any problems in early childhood, although the applicant stated that he had no positive role models or stability in the family home. His father suffered from mental illness and his mother was often away working. The applicant reported that his father had attempted suicide and had been admitted to psychiatric institutions. The applicant attempted suicide at the age of 13 and had two admissions to the children's ward at Port Macquarie Base Hospital as a result. The applicant attended high school in the Port Macquarie area but did not do well academically and was expelled in Year 11 for non-attendance.
The applicant gained a qualification as a rigger on cranes at the age of 17 or 18 and worked in the mines at Mt Isa with his father until the age of 22 or 23. He travelled to Thailand for about two years and developed a severe antibiotic-resistant chest infection.
The applicant reported a history of anxiety throughout his school years, teenage years and in his 20s. He described being fearful of open spaces, people and new environments. Dr Furst noted that the applicant described symptoms suggestive of panic attacks as well as a history of depression dating back to childhood. The applicant was first treated for anxiety and depression as a child and, as at the date of the interview, was still being treated with antidepressants. He reported hearing "voices" telling him to do things, which he had experienced since childhood, although he had not previously reported it. He said that he felt anxious and paranoid in custody and believed people were plotting against him.
The applicant began using cannabis at the age of 14 or 15 and occasionally used alcohol and other illicit drugs. The applicant said that he developed an addiction to codeine when being treated for his chest infection in Thailand. He subsequently developed an addiction to heroin and used methylamphetamine throughout his 20s. Medical records from Justice Health indicate that the applicant was prescribed methadone in custody in 2017 as part of an Opioid Substitution Program. However, Dr Furst noted that his self-reported drug use was inconsistent.
The applicant reported using methylamphetamine and heroin at the time of the offence and said that he was "on the run" because he felt paranoid about the police. The applicant told Dr Furst he was worried about being falsely accused and locked up again, stating that this had happened twice since 2014. He said he was worried about being shot by police as that had happened to one of his friends the previous year.
In relation to his criminal history, the applicant had been held on remand for various periods over a 20-month period in 2014-15 in relation to an unlawful killing of which he was eventually acquitted. He was later sentenced to 20 months imprisonment with a non-parole period of 10 months for contempt because he refused to take an oath or an affirmation when called in a "Basha inquiry" at the trial of his former co-accused. He was released on parole on 27 February 2017.
Approximately 18 months later, in July 2018, the applicant was again arrested and refused bail, on this occasion in relation to an offence relating to supply of a large commercial quantity of a prohibited drug. The charges were withdrawn resulting in the applicant's release from custody in January 2019. This history of being remanded in custody in relation to matters that did not lead to convictions was said to form the backdrop for much of the applicant's conduct in relation to the current offences.
The applicant's Justice Health medical records indicated that he had been admitted to Port Macquarie Base Hospital for a possible drug overdose at the age of 15, and reported post-traumatic stress disorder ("PTSD") after his hospital admission in Thailand. The applicant had given inconsistent reports in relation to his past drug use and had at certain points experienced high levels of anxiety and depression, although no previous signs of psychosis were noted. On 19 December 2019, the applicant reported "increased stress" and it was noted that the applicant reported a childhood diagnosis of ADHD and previous childhood hospital admissions. The notes stated that the applicant was "reluctant to disclose details of his childhood conditions". In April 2020, the applicant reported experiencing paranoia and poor sleep and described "voices", although it was not clear if they were hallucinations or simply an "internal monologue".
Dr Furst opined that the applicant met the DSM-5 criteria for substance use disorder, anxiety disorder and personality disorder (borderline and antisocial features), with likely onset in adolescence, possibly earlier. Dr Furst believed the applicant would have been suffering those conditions at the time of the offending but stated that the relationship between his mental illness and offending behaviour was unclear. Dr Furst noted the applicant's reported apprehension about police and wrongful imprisonment but noted that these feelings were difficult to disentangle from the applicant's "underlying antisocial and antiauthoritarian attitudes". Dr Furst opined that the applicant had a moderate to high risk of re-offending and recommended that he engage with programs such as the Violent Offenders Treatment Program ("VOTP"). He did not believe the applicant's time in custody would be more onerous as a result of his mental health conditions including in the context of the COVID-19 pandemic.

Remarks on sentence

The sentencing judge summarised the agreed facts as set out above and noted the Form 1 and s 166 certificate matters. In relation to the objective seriousness of the firearm offence (the finding subject of the complaint under ground 1) the sentencing judge noted that relevant factors included the nature of the weapon, whether it was loaded and whether ammunition was located with it. Her Honour observed that the weapon was a .22 bolt action rifle which was not loaded, although 66 rounds of ammunition were found with it. Her Honour observed that there was no evidence as to whether the firearm was in working order, nor was there any evidence as to how long the applicant was in possession of the firearm, having only purchased objects to conceal it the day before it was found. The sentencing judge concluded that the offence was "slightly below the mid-range of objective gravity" and noted that it was an aggravating factor that the applicant was on parole for similar offences when he was found in possession of the firearm. The sentencing judge also found a need for specific deterrence as the applicant was aware he was not permitted to possess firearms, having been served with the relevant prohibition orders only eight days previously.
In relation to the armed robbery offence, the sentencing judge had regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and noted that three of the seven listed factors were present in the applicant's case. Her Honour found that the offending fell at the mid-range of objective seriousness and stated that the three Form 1 matters were "relatively minor" and "[did] not add significantly to the sentence".
As for the third offence of police pursuit, the sentencing judge took into account that a police officer narrowly avoided injury and the pursuit continued for at least two kilometres until it was terminated due to the risk to other road users. It was noted that the applicant at times reached speeds of 40km/h over the speed limit and crossed to the wrong side of the road, forcing other vehicles to take evasive action. The sentencing judge concluded that the offence fell at the mid-range of objective seriousness. Her Honour noted the five Form 1 matters, including the earlier police pursuit on 3 July 2019 which was the "most serious" of the Form 1 matters. The other four matters were described as "relatively minor".
In relation to the applicant's subjective case her Honour noted that the applicant had served sentences of imprisonment in 2015 for supplying a prohibited drug and in 2016 for firing a firearm in a public place and possessing an unauthorised firearm. Her Honour found that the applicant's record would disentitle him to leniency. Although the applicant did not give evidence in the proceedings on sentence, the sentencing judge had regard to his letters to the Court, his three character references and the psychiatric report of Dr Furst. The sentencing judge found that the applicant's anxiety disorder could make his time in custody more onerous and noted the expressions of remorse in his letters, stating however that it was difficult to assess how genuine these expressions were.
The sentencing judge noted that the applicant had worked after leaving school and had applied for certain courses in custody. Her Honour found that the applicant's prospects of rehabilitation were guarded and would depend on his ability to abstain from drug use upon his release.
The sentencing judge applied a discount of 25% for the utilitarian value of his pleas and took into account the impact of the COVID-19 pandemic. Her Honour made a finding of special circumstances based on the applicant's need for rehabilitation. Her Honour then imposed the sentences as set out above.

The grounds of appeal

The applicant seeks leave to appeal on the following grounds: "1. Her Honour erred in the assessment of the objective seriousness of the firearms offence. 2. The sentence is manifestly excessive. 3. The court proceeded on an erroneous view of the facts, as the [applicant's] PTSD and the sequelae of childhood sexual abuse was not diagnosed or disclosed at the time of sentence."

Ground 1 - Her Honour erred in the assessment of the objective seriousness of the firearms offence

The applicant frankly acknowledged the significant hurdle presented by a ground of appeal in these terms. This was no doubt, based on an appreciation of what this court said in Mulato v R [2006] NSWCCA 282. In Mulato, Spigelman CJ stated (at [37]): "37. Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised." (emphasis added)
In her judgment, Simpson J stated (at [45]-[46]): "45 … I agree with the Chief Justice. I wish merely to underline my agreement in respect of one matter. Most emphatically, I agree with his Honour's observations at [37]. 46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." (emphasis added)
As Beech-Jones CJ at CL observed, having set out the above passages, in Greentree v R [2018] NSWCCA 227 at [34]: "Although it was not intended, these two passages appear to provide slightly different formulations of the basis upon which a challenge to the characterisation of objective seriousness can be mounted. The first passage appears to only countenance a challenge on the basis that the finding was not "open" whereas the second appears to enable a challenge on all the bases stated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 ("House") which can include a conclusion based "upon a wrong principle" or which is affected by "irrelevant matters", "mistake[n] … facts" or a failure to "take into account some material consideration"."
It will be necessary to return to the nature of the complaint in determining this ground.
In the present matter, the sentencing judge recounted at the outset of her Honour's sentencing remarks the facts relating to each of the offences including the firearms offence. Later in her reasons her Honour turned to an assessment of the objective gravity of the three principal offences. In relation to the firearms offence, her Honour said: "As to the first offence, relevant factors include the nature of the weapon, whether it was loaded and whether ammunition was located with it. In this case the weapon was a .22 bolt action rifle which was not loaded. However, 66 rounds of ammunition were found with it. There is no evidence that the weapon was tested by ballistics experts and therefore there is no evidence it was in working order. Nor is there any evidence how long the offender had possession of the weapon but he obtained the items to secrete it only the day before. Overall, I find that this offence falls slightly below the mid-range of objective gravity."
The applicant accepted that it was clear from the above that her Honour took into account various matters relevant to the objective seriousness of the offence, and that this was consistent with submissions made on behalf of the applicant. Nonetheless, it was submitted the assessment was in error. The complaints made on the appeal fall into three broad categories. First, that a relevant matter was not taken into account; secondly, some relevant matters were taken into account but without elucidation of how they were taken into account; and thirdly, an attack on the reasoning and the conclusion by reference to the potential range of such offending.
With respect to the first category, the applicant submitted that a relevant factor to which her Honour did not refer in her assessment of objective seriousness, was "the circumstances attending the [applicant's] possession" of the firearm: see R v Farrell (2014) 239 A Crim R 212; [2014] NSWCCA 30 per R A Hulme J at [63], where his Honour noted the relevance of this matter in the context of a firearms offence. In this regard, the applicant submitted that it was significant that the firearm was found secreted, and in a rural location. It was submitted that the fact that it was not available for immediate use, and stored in a way that kept it hidden from other members of the public militated in favour of an offence lower on the scale of objective gravity. These circumstances were contrasted (by way of example) with those in Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170. In Thalari, the offence (albeit against a different provision but nonetheless instructive) involved possession of a loaded pistol on the front seat of the vehicle driven by the offender for use in connection with his drug supply activity.
I would be hesitant to find that her Honour did not take this matter into account. As noted above, her Honour carefully recited the facts of the offending. The circumstances in which the firearm was found were clearly known to her Honour when she indicated, as she did in the passage set out above (at [52]) that "relevant factors include…". In this regard it might also be noted that the "circumstances attending" the applicant's possession were removed from, for example, a person who had come across a firearm inadvertently and failed to dispose of it, or a person fleetingly in possession of an item on behalf of another who was authorised to possess it. The relevance of this is that the factor was not as significant as the submissions of the applicant suggested, with the result that the absence of specific reference to the matter in the context of the assessment of objective gravity is less significant than it otherwise may have been.
With respect to the second category, matters in relation to which there was no elucidation as to how they were taken into account, the complaint is more in the nature of one as to adequacy of reasons: see Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 per Hayne J at [129]-[130]; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 per French CJ and Kiefel J at [54]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA at [56]-[66].
The complaint in this second category necessarily includes the circumstances attending the applicant's possession of the firearm given, as discussed above, this was not expressly referred to in the assessment of objective gravity. Given the integral nature of that circumstance to the offending, I remain hesitant to find error in relation to a finding of objective seriousness on this basis. No doubt greater elaboration was possible. However, in a context where an impression of the offending is informed by the facts of the matter I do not think that error is established on the basis of a failure to spell out the significance of this matter alone.
Also in the context of this second category, the applicant pointed to her Honour's reference to the "nature of the weapon". The applicant submitted that it was not clear how this aspect affected the determination of objective gravity. The small calibre of the weapon and the fact that it had a bolt action mechanism rather than a more sophisticated firing mechanism tended to suggest a lower level of objective seriousness when compared with other potential offences against the provision. However, in the context of the submissions that were made (and to which the reasons responded), I would not accept that a failure to elucidate the relevance of this factor, alone, bespeaks error.
A further complaint in the second category, was based on her Honour's observation that the firearm was not loaded after which she immediately said, "[h]owever, 66 rounds of ammunition were found with it". Both matters were clearly relevant to objective seriousness. Her Honour obviously appreciated that the fact the weapon was not loaded meant the offence was not as serious as would have been the case if the converse were true. Contrary to the applicant's submission, there was no need for elaboration in this regard. However, with respect to the ammunition, the position in this case was slightly unusual. Such a factor will ordinarily increase the seriousness of the offending: Thalari at [88]. Her Honour's use of the word "however", in juxtaposition to the earlier observation that the weapon was not loaded suggests that was the view her Honour took. The difficulty in the present case is there was no analysis of the relevance of this factor in the context of the absence of any evidence the firearm was operable.
As there was no evidence the firearm was working there was no basis to find the ammunition could be used with the weapon. Given this it could not aggravate the offence of possessing the firearm (albeit it was capable of being an offence in and of itself). It should also be observed that, in circumstances where the firearm was in possession of the police, and having regard to the capacity of the police to test the item (see Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [36]), there is, a particular unfairness in having regard to ammunition as an aggravating factor when there was no evidence the ammunition could be used with the firearm. In this regard, the fact that the ammunition was of the same calibre and found with the firearm does not allow an inference the ammunition was stored for use with the weapon, particularly, given the presence of other items such as the pistol receiver and trigger which pointed to a willingness to store disparate firearm related items together. Of course, even if the weapon was inoperable, the ammunition could have been available in anticipation of the firearm being repaired. This was, however a contingency. I am satisfied her Honour was in error in taking this matter into account, in a manner that elevated the assessment of the objective seriousness of the offence.
The applicant also submitted that, while her Honour referred to the partial removal of the serial number when recounting the facts of the offence, no finding was made as to whether that factor was taken into account, and if so how. Insofar as it is implicit in the applicant's complaint that her Honour failed to properly analyse, and consequently overstated, the objective gravity of the offence, it is not clear how this aspect could assist the applicant. Failure to have proper regard to this matter could only work in his favour.
With respect to the third category of complaint, the applicant submitted that s 62 of the Firearms Act criminalises the shortening of a firearm, the possession of such a shortened firearm, and the supply or giving possession of such a firearm to another person. It was submitted that, "all things being equal", an offence of possession will be less serious than the other two possibilities. This was submitted to be a matter that was necessary to be taken into account in order to properly conceptualise where in the scale of objective gravity the present offence fell. For reasons similar to the observations above with respect to the circumstances of the possession, I would be slow to conclude that her Honour failed to appreciate the breadth of the provision and its consequent impact on the assessment of this offence.
In addition, with respect to the third category of complaint (the potential breadth of offending covered by the offence), the applicant pointed to potential offences involving firearms capable of discharging bullets in rapid succession, larger calibre weapons, and weapons being carried by offenders in the course of other criminal activity loaded and ready for use. It can be accepted that the present offence, by comparison with each of these circumstances, is of lesser seriousness. The more difficult issue is a conclusion that her Honour failed to appreciate this.
The applicant relied on the cumulative effect of the above matters. I am mindful in this regard that error is not established by failure to attain perfection and that what is required is a fair reading of the reasons as a whole, in the context of the issues presented by the parties. Ultimately, however, for the reasons given above, the relevance of the ammunition in the particular circumstances of this case required closer scrutiny. The manner in which this was taken into account results in a House v The King (1936) 55 CLR 499; [1936] HCA 40 error. Indeed, it is an error which could have been stated independently of the determination of objective seriousness, and thereby sidestepped any limitation arising from the observations of Spigelman CJ in Mulato. While greater precision was possible, the ground of appeal is sufficiently broad to incorporate the error. The matter was fully argued. I would not shut out the appeal on the basis that the applicant identified the error as one which went to the finding of objective gravity rather than exercise of the sentencing discretion more generally. I am therefore of the view that this ground is made out.

Ground 2 - manifest excess

Where an applicant appeals against a sentence on the basis it is manifestly excessive, it remains a complaint based on error. The error is, however, not a specific error capable of identification, sometimes described as a "patent error". Rather, the contention is that the outcome is such that it can be inferred that some error must have occurred, sometimes described as "latent" error. A summary of the principles to be applied in a complaint of manifest excess was set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • 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. • It is not to the point that this Court might have exercised the sentencing discretion differently. • 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. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Having regard to my conclusion with respect to ground 1, this ground can be dealt with relatively briefly. It is, nonetheless, useful to consider the ground given the relevance of the issues raised to the question of resentence. As noted above, her Honour imposed an aggregate sentence pursuant to s 53A of the Sentencing Act. It is trite to observe that the appeal is against the aggregate sentence and not the indicative sentences. Inevitably, however, submissions were directed towards the indicative sentences, these being the foundation on which the aggregate sentence was ultimately determined.
The principal focus of the submissions was on the armed robbery offence. It was noted that when regard is had to the 25% discount for the plea of guilty, the starting point for that sentence was one of 10 years. Both at first instance and on the appeal, the submissions invited the court to consider the present matter by reference to the guideline judgment in relation to armed robbery: see Henry. It will be recalled that Spigelman CJ (at [161]) postulated a typical case with the following factors: 1. young offender with no or little criminal history; 2. weapon like a knife, capable of killing or inflicting serious injury; 3. limited degree of planning; 4. limited, if any, actual violence but a real threat thereof; 5. victim in a vulnerable position such as a shopkeeper or taxi driver; 6. small amount taken; 7. plea of guilty, the significance of which is limited by a strong Crown case.
His Honour indicated (at [165]) that sentences for offending of the above character "should generally fall between four and five years".
The guideline was later clarified in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 to provide that the reference to a plea of guilty should be understood as a reference to a late plea of guilty. If the Henry guideline is assumed to involve a 10% discount, the notional starting point would be in the range of 4 years, 5 months to 5 years, 6 months, although there was, at the time Henry was decided, no arithmetical precision as to the discount for "a late plea": see Sullivan v R [2016] NSWCCA 172 at [15]-[19]; and contrast now with the introduction of Div 1A into Part 3 of the Sentencing Act. A late plea under the current provisions will, other than in a small category of cases, attract a discount of 5%. This would reflect a range for the starting point of 4 years, 2 and a half months to 5 years and 3 months.
Of course a guideline judgment provides a "check", "sounding board" or "guide" (R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [113]) rather than a "tramline": Legge v R [2007] NSWCCA 244 at [59]. This is as true for sentences said to be excessive as it is for those said to be inadequate. Nonetheless, it remains instructive to have regard to the present matter by reference to the guideline.
In the present matter the offence was one of robbery while armed with a dangerous weapon against s97(2), as opposed to an offensive weapon against s97(1) of the Crimes Act, with the consequence that the maximum penalty was 25 years imprisonment rather than the 20 year maximum the subject of the guideline offence. It does not, however, follow, simply based on the higher penalty to which the applicant was exposed, that the offence is necessarily more serious than some other offence of robbery involving an offensive weapon. Here it was not established the firearm was genuine. While, conversely there was no finding made on the balance of probabilities that the weapon was a replica (or a cap gun as has since been asserted in a report before this Court discussed below), it is clear the applicant could not be sentenced on the basis that the offence involved a weapon "capable of killing or inflicting serious injury": see generally Filippou v The Queen (2016) 256 CLR 47; [2016] HCA 29 at [61]-[72]. Consequently, I regard this aspect of the offence as less serious than the typical Henry case (albeit, not to the extent that would have been the case had a positive finding been available that the weapon was genuine).
With respect to other aspects of the guideline, the applicant compares unfavourably with regards to his age, his record, the value of the property stolen, and the degree of planning. While the offence involved planning, it was not particularly sophisticated. The biggest departure from the guideline was the value of the property stolen. While clearly relevant, generally speaking, the value of the property is not at the core of the offence, the offence of armed robbery being more in the nature of a public order offence than a dishonesty offence (albeit dishonesty is necessarily an element). That is why heavy penalties are imposed for robbery offences where only a small amount of property is taken. Of course, the value of property will often be intrinsically linked with the level of sophistication of the offence, as exemplified in the case of a group of organised, armed and disguised offenders robbing a bank or armoured van.
Three offences on a Form 1 were also taken into account in sentencing for this offence. Those offences were not of great moment in the context of the offence for sentence. In this regard the sentencing judge, observed that the "three matters to be taken into account on this charge are relatively minor and do not add significantly to the sentence". This conclusion was clearly open. While consideration must be given to the form 1 matters with respect to the weight to be attached to specific deterrence and retribution (see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]) given the nature of the form 1 matters, they can have little impact. The licence plate offence, for example, carried a fine only. The larceny and goods in custody offences if dealt with separately, might, depending on the sentence imposed have resulted in concurrent sentences. It would be an odd result if the applicant could be worse off as a result of the use of the form 1 procedure. In my view, these offences would not necessarily result in any longer sentence at all: see Lloyd v R [2022] NSWCCA 18 at [13] per McCallum JA (with whom Hamill and Cavanagh JJ agreed).
Having regard to the particular circumstances of this matter, and the extent to which it departs from the guideline judgement, a starting point in excess of that contemplated in the guideline is clearly warranted. That said, when regard is had to the nature of the offending, it is difficult to justify the extent to which the starting point of 10 years exceeds the notional starting point postulated in the guideline.
With respect to the police pursuit offence, her Honour found the offence to be in the mid-range, a finding not challenged on this appeal. The starting point for the sentence, prior to the discount for the plea of guilty, was a little over 2 years and 8 months. Significantly, the sentence took into account matters on the Form 1. While there were five offences on the Form 1, only one was of significance. That is the offence of police pursuit. The seriousness of that offence and its similarity to the offence for sentence suggest, in my view, a need for weight to be given to specific deterrence and to retribution in the sentencing exercise. However, against a maximum penalty of 3 years, a starting point of 2 years and 8 months for an offence said to be in the mid-range is, at the least, at the top of the available range.
In relation to the possession of a shortened firearm offence, no additional submissions were made beyond those made in the context of ground 1. A significant consideration in relation to this matter beyond the objective gravity of the offence discussed in the context of ground 1, was the fact the applicant was not only on parole at the time of this offence, but on parole in relation to a sentence for firearm offences.
Ultimately, it is not necessary to form a final view with respect to this ground. It is apparent from the above discussion that at least two of the indicative sentences are very high. However, the ground, of course, attacks the aggregate sentence. It is entirely possible, through notional concurrence, to provide indicative sentences that would have, if passed, been excessive, but an aggregate sentence that is not.
In the present matter, there is a degree of (notional) concurrence between the indicative sentences. Those indicative sentences did not, and were not required to, specify non-parole periods: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297. Nonetheless, if actual sentences had been passed with non-parole periods in accordance with the statutory norm, in part depending on the order of imposition, accumulating the sentences to the full extent possible would not produce a sentence greatly in excess of the 10-year aggregate sentence that was imposed. Viewed this way, the aggregate sentence provides less by way of concurrence than might, at first blush, appear.

Ground 3 - fresh or new evidence

In the light of ground 1 having been established, it is unnecessary to determine whether intervention by this Court is warranted on the basis of the new evidence. As a result of the success of ground 1, this Court is required to re-exercise the sentencing discretion. The material relied on under this ground is admissible for the purposes of resentence. The content of the material is discussed below. While the material deals with events, and in particular childhood abuse, that occurred prior to sentencing, the applicant's willingness to discuss the events is a matter that has arisen subsequent to sentence. It is true that the applicant disclosed the abuse to a psychologist prior to sentence. However, in his evidence, the applicant explained that, despite this, he was not able to discuss the matter with Dr Furst, as he was not comfortable discussing the issues with a male. I found his evidence, and the emotion with which it was given, compelling. What has since transpired is evidence of an ongoing willingness to confront, and deal with matters in his past that have led to his drug use and criminal behaviour. In other words, his willingness to engage with health professionals in relation to these matters in his background bears directly on, and is evidence of, progress towards rehabilitation subsequent to sentence, and is consequently admissible for the purposes of resentence. The evidence on resentence is discussed further, below.

Further evidence relevant to resentence

The applicant relied on the report of Ms Ivanka Manoski, forensic psychologist, dated 4 October 2021. Ms Manoski interviewed the applicant for approximately two hours via AVL and had regard to the material tendered in the proceedings on sentence. Her report disclosed the following matters.
The applicant reported experiencing a sexual assault at the age of 13 by a male school teacher. The applicant described feeling self-blame and fear throughout his time at school. He began to avoid attending classes so as not to come into contact with the perpetrator. He fell behind academically and "rebelled against all male authority figures" in response to the abuse. Ms Manoski noted that the applicant "developed numerous symptoms related to [post-traumatic] stress".
Ms Manoski noted that the applicant reported using substances to self-medicate as a way of coping with difficulties he has experienced since the sexual assault. In her opinion the applicant met the DSM-5 criteria for severe stimulant use disorder (amphetamine type) and severe opioid use disorder(. Ms Manoski further opined that these disorders were present at the time of the index offences and would have contributed to his offending. She stated that "[s]ubstance abuse appears to be his most salient risk factor for offending" but noted that the applicant had stabilised since participating in programs used to treat substance abuse and would require a "multifaceted support network" to remain abstinent upon his release. The applicant expressed a desire to engage in further programs and treatment for his substance abuse.
In relation to the applicant's psychological state generally, Ms Manoski opined that the applicant met the DSM-5 criteria for PTSD and generalised anxiety disorder, both of which were present at the time of the index offences. She believed that the symptoms of these conditions directly contributed to the applicant's engagement in the police pursuit offences as he held fears relating to authority figures and potential abuse. His mental health also contributed to his substance abuse which in turn motivated his offending behaviour as a means of financing his drug use. Ms Manoski agreed with Dr Furst's assessment and diagnosis but noted that because the applicant had not disclosed the abuse, Dr Furst's report had not taken it into account. Ms Manoski also noted that the applicant's primary disorder appeared to be PTSD, with his other conditions likely to be comorbidities associated with his traumatic experience.
Ms Manoski noted that the applicant took responsibility for the index offences but minimised his offending by stating that the weapon involved in the robbery was only a "cap gun" not a real weapon. (I note here that, if true, I would not necessarily regard this assertion on its own, as "minimising" the offence.) In relation to the police pursuit offence, the applicant told Ms Manoski that his difficulties with authority and fear of abuse, which had been strengthened by his previous experiences with police, were re-activated. Ms Manoski noted that although the applicant had not previously sought help to process his traumatic experience, he had recently been more open to seeking assistance, including attending three or four sessions with a psychologist in custody.
The applicant's mother passed away in June 2021 while he was in custody. While the applicant was permitted to visit her in hospital, he was not permitted to attend her funeral and told Ms Manoski that he "[hadn't] grieved yet".
Ms Manoski recommended that the applicant engage in programs such as the Intensive Drug and Alcohol Treatment Program and continue to engage with the Buvidal program while in custody and potentially in the community as well. She noted that the applicant may benefit from participation in a rehabilitation program at a residential rehabilitation facility to maintain abstinence from drugs.
The applicant's affidavit of 14 September 2021 stated that he was employed as the head sweeper in his wing and the sweeper in education. He had not incurred any institutional misconduct charges while in custody. The applicant was in the process of completing an "intensive learning course" in literacy and numeracy and was also working on his "Riggers and Doggers" ticket. He intended to get a job as a rigger upon his release.
The applicant said that upon his release he planned to travel to Queensland where his father would assist him to find employment. He felt strongly that if he could avoid anti-social contacts and a relapse into drug use he could live a law-abiding lifestyle. The applicant also stated that he had participated in a buprenorphine program in custody which had made a real difference for him and meant that he no longer felt the need for drugs.
The applicant described gaining insight into the thought processes that led him to use drugs, such as to "block out" negative memories of abuse. He stated that he intended to obtain further counselling while in custody. The applicant was in regular contact with his father and brothers, whom he described as very supportive and willing to help him make a new start in life after his release.

Sentence

I adopt what has been said above with respect to the offences and the applicant's subjective circumstances. Having regard to the material led on resentence I have a more optimistic view of his prospects of rehabilitation than that taken at first instance. Nonetheless, given his history, his prospects, while improved (and hopefully improving), remain uncertain. I am also of the view that the diagnosis of PTSD and generalised anxiety disorder warrants some amelioration of the weight to be given to general deterrence. Ms Manoski found there to be a causal link between those conditions and the offending, with the consequence of a potential reduction to the applicant's moral culpability with respect to the offences. Nonetheless, having regard to the premeditation involved in the firearms and robbery offences, any amelioration in this regard is slight. In relation to the driving offence, the nature of the offence is such that general deterrence must remain an important consideration. As such, any reduction in culpability is largely counterbalanced by the need for general deterrence.
Like the judge at first instance, I would impose an aggregate sentence.
If I were not imposing an aggregate sentence I would have imposed the following sentences: 1. In relation to the possession of the shortened firearm, I would commence with a sentence of 5 years. A discount of 25% for the plea, results in a sentence of 3 years and 9 months. 2. In relation to the robbery offence, and taking into account the matters on the Form 1, I regard an appropriate starting point as one of 8 years. After applying a discount of 25%, the indicative sentence for that offence is 6 years. 3. In relation to the police pursuit, taking into account the matters on the Form 1, I regard an appropriate starting point as being 2 years. With a 25% discount for the plea of guilty, the indicative sentence is 18 months. 4. In relation to the matter on the s 166 certificate, the unlawful possession of the Toyota RAV4 motor vehicle, I would have imposed a sentence of 8 months, which, discounted by 25% results in a sentence of 6 months.
Having regard to the above indicative sentence, I would impose pursuant to s 53A of the Sentencing Act an aggregate sentence of 8 years commencing on 8 August 2019. I would find special circumstances for the purposes of s 44(2B) of the Sentencing Act and would set a non-parole period of 5 years.

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentences imposed in the District Court by her Honour Judge Hock. 4. In lieu thereof, 1. sentence the applicant, to an aggregate term of imprisonment of 8 years commencing 8 August 2019 and concluding 7 August 2027; 2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 5 years expiring on 7 August 2024; 3. Specify that the earliest date the applicant will be eligible to be released to parole is 7 August 2024; 4. Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence had an aggregate sentence not been imposed are: 1. Sequence 1: imprisonment for 3 years and 9 months; 2. Sequence 2: imprisonment for 6 years; 3. Sequence 3: imprisonment for 18 months; 4. the offence on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW): imprisonment for 6 months.

Amendments 12 May 2022 - Typographical error on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (40)