Chandab v R

Court of Criminal Appeal (NSW)|2021-07-16|Before: Leeming JA, Wilson J, Ierace J

Judgment

LEEMING JA: I agree with Wilson J and Ierace J that though there should be a grant of leave, the appeal should be dismissed. Both of their Honours agree, as do I, that it was open to the primary judge to conclude that the objective seriousness for the firearms offence was above mid-range. That suffices to resolve ground 1 of the appeal. To the extent that there is a difference of approach in the review of the finding of objective seriousness made by the sentencing judge, it is not necessary to resolve that difference for the purposes of this appeal, and I refrain from doing so, particularly in circumstances where, as Ierace J observes, there are deficiencies in the transcript and the materials made available on appeal as to precisely what was put forward and what was withdrawn by the parties below. Subject to the above, I agree generally with the reasons of Wilson J, and in particular with her Honour's comments concerning the artificiality of the sentencing task which the sentencing judge was required to address. I also agree with concluding four paragraphs of the reasons of Ierace J.

The Proceedings in the District Court

Having been committed for trial to the District Court, the applicant entered pleas of guilty on 17 February 2020, the day fixed for his trial, to both charges on the indictment presented against him. Count 1 of the indictment was a charge of possessing a prohibited pistol, contrary to s 7(1) of the Firearms Act 1996 (NSW), an offence which carries a maximum penalty of 14 years imprisonment, with a standard non-parole period ("SNPP") of 4 years imprisonment. Count 2 charged the applicant with knowingly taking part in the supply of a prohibited drug in an amount not less than the commercial quantity of the relevant drug, that being cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 20 years imprisonment, with a SNPP of 10 years imprisonment specified.
Other offences, of which the applicant acknowledged his guilt, were before the Court on two separate Form 1 documents, to be taken into account when sentence was imposed pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). With respect to count 1, the applicant asked the sentencing court to take into account an offence of possessing a defaced firearm contrary to s 66(1)(b) of the Firearms Act, a crime that carries a maximum penalty of 14 years imprisonment when prosecuted on indictment. When sentence was imposed for count 2, two offences were taken into account, being offences of dealing with the proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW), and assault occasioning actual bodily harm ("AOABH"), contrary to s 59(1) of the same Act. The former carries a maximum penalty of 3 years imprisonment, the latter 5 years imprisonment, when prosecuted on indictment. A maximum penalty of 2 years applies to each when dealt with summarily.
Sentence proceedings came before her Honour, sitting at Parramatta District Court, on 15 June 2020.

The Crown Case

The Crown tendered a statement of facts, which was agreed to be accurate by the applicant. The facts gave the detail of the applicant's crimes, as follows.
As at October 2017 the applicant and his brother, Hayan Chandab, were both members of an outlaw motorcycle gang, the Comancheros, holding senior positions. They were the leaders or senior position holders of a faction of the Comancheros known as the "West Side Crew". Each man was the subject of a Firearms Prohibition Order ("FPO") and had been since June 2015.
On 5 October 2017 police attended an industrial unit in Severn Street at St Marys that was occupied by the applicant's brother, and used by him to conduct a smash repair business. A search of the premises was conducted, to check compliance with the FPO that was in force. The search included a search of a Toyota Hilux vehicle that was parked at the premises. The Hilux, although in the custody of Hayan Chandab, was owned and used by the applicant.
On discovering an anomaly in the centre console area of the vehicle, a close examination was made and a hidden compartment was discovered under a false bottom of the console. When the false bottom was lifted eight bags containing a total of 634.7 grams of cocaine were found. Later analysis determined the cocaine to be of high purity, at 83.5% pure. Its estimated street value at the time was in the order of $184,000.
When the bags of cocaine were removed from the hidden compartment a revolver could be seen. It was removed and checked and found to be fully loaded with six bullets. When later examined by a ballistics expert, the gun was determined to be a .357 magnum calibre Smith & Wesson six chamber revolver. The weapon meets the definition of "prohibited pistol" provided by s 4C of the Firearms Act. The bullets that had been loaded in the gun were .357 magnum calibre cartridges suitable for use in the revolver, and they constituted "ammunition" as defined by s 4(1) of that Act. The firearm had been defaced by the obliteration of its serial number from its frame (this constituting the offence contrary to s 66 of the Act, taken into account on sentence against count 1). It was otherwise in working order, and capable of discharging the bullets with which it had been loaded.
The Toyota Hilux was forensically examined. It was determined that the secret compartment in the console in which the cocaine and gun had been found had been installed in the vehicle after its manufacture. It was operated by a mechanism - also installed after manufacture - that linked it to the control of the rear demister to the vehicle. When the demister control was activated, power flowed to the switch installed to operate the compartment, and it could be activated. The applicant's fingerprint was found on a panel adjacent to the installed switch.
The revolver was also forensically examined and DNA was recovered from the trigger of the weapon, and from grooves along its cylinder. The DNA from the trigger has the same profile as that of the applicant; the DNA from the cylinder originated with at least two individuals, one of whom was statistically highly likely to be the applicant. Hayan Chandab was not forensically linked to the revolver.
Hayan Chandab was arrested on 5 October 2017 and gave police an account of the Hilux having been left at his premises on an unknown date for repairs, with the keys pushed under the door of his unit. He denied having opened the centre console of the vehicle.
Inquiries found that the applicant had flown overseas on 2 October 2017, being due to return to Sydney on 9 October 2017. Police officers met the applicant at Sydney Airport when he disembarked after his flight, and formally required him to provide the details of the person with custody of his Hilux in the preceding week. He said that he had left it at a smash repair business at St Marys but could not confirm who had access to the vehicle. Footage seized from CCTV operating at the industrial complex where the smash repair business was located showed that the Hilux remained parked as the applicant left it until being searched and seized by police.
On 31 January 2018, a search warrant was executed at the applicant's home at Dural. A sum in excess of $126,000 in cash was found in various locations within the home, and in a car parked there. Of that total, $16,460 was reasonably suspected to be the proceeds of crime.
When interviewed, the applicant made no comment concerning the discovery of the cocaine and the loaded revolver found in his Hilux, or about the DNA evidence recovered from the gun. He was charged and remanded in custody.
On 31 May 2019, whilst still on remand awaiting trial, the applicant assaulted a fellow inmate at the Metropolitan Remand and Reception Centre at Silverwater Gaol. The assault was precipitated by an internal dispute relating to the Comancheros gang. The applicant struck his victim to the face and, after he had fallen to the floor, punched him a number of times to the head and upper body. The victim, who would not make a statement, suffered a bleeding nose and bruising and swelling to an eye area. The incident was filmed by security cameras.
The Crown also tendered the applicant's criminal history to the sentencing court. The applicant has a history for violence and dishonesty offences. His first convictions were for offences of resisting a police officer, assaulting a police officer, and intimidating a police officer in the execution of duty, committed in December 1999. In December 2000 the applicant was fined for destroying property. A series of dishonesty offences in 2001 followed, with the applicant being convicted of multiple counts of each of using a false instrument with intent, and obtaining money by deception, together with a single count of opening a bank account in a false name. A fine, recognisance, and terms of periodic detention were imposed by way of sentence.
In 2006 the applicant was again convicted of obtaining money by deception, with 10 such offences resulting in terms of imprisonment. In 2007 there were a further four convictions for offences of that nature, ultimately resulting in terms of imprisonment.
In 2010 the applicant was gaoled after being convicted of affray; before a further dishonesty conviction in 2019 for an offence of publishing false material to obtain an advantage (from January 2018) saw him serving a community corrections order.
The applicant's custodial history showed that, since entering the custody of NSW Corrective Services on 2 February 2018 after his arrest for the present matters, he was dealt with on four occasions for institutional offences, being two counts of fighting, and one count each of receiving an unauthorised article and disobeying a direction.
A sentencing assessment report ("SAR") was also before the sentencing court. The author interviewed the applicant and his wife and reviewed documentary records relating to him. The applicant said he had a happy family life with his wife and two children and would return to the family home upon release from prison. He said he operated a business selling sports memorabilia.
Despite his pleas of guilty, the applicant "appeared to take limited responsibility" for his crimes in the opinion of the author of the SAR. He accepted responsibility for the firearm, claiming that he had kept the loaded gun in his car due to concerns for his safety, but did not accept responsibility for the supply offence. The applicant said that he had not supplied drugs, asserting that a criminal acquaintance had asked to use his car to conceal something that the applicant suspected was illegal. He stated that the money the subject of the Form 1 offence was profit from the conduct of his business and was not unlawful.
The applicant acknowledged having had an association with an outlaw motorcycle gang since 2005, obtaining full membership in 2012. He told the author of the SAR that, by "negotiating" with Comanchero members in custody, he had been able to end his membership with the outlaw gang.
The applicant was assessed by the author of the SAR as being at medium - low risk of reoffending. It was noted that he had successfully completed a parole order between 2011 and 2013.

The Applicant's Case

The applicant gave evidence on 15 June 2020. He said that, since having entered custody he had had "a lot of time to reflect" on what he had done, and the "drugs found in [his] vehicle" were "a bad decision" which he regretted. As to the gun, the applicant deposed that it too was a bad decision "because a gun in the community is dangerous". He said that, after the shooting of his brother four or five years before [that is, 2015 or 2016], he had concerns for his safety and, three months before the gun was seized by police, he had purchased it for protection.
He explained the assessment made of his limited acceptance of responsibility for his crimes reported in the SAR as a misunderstanding, saying that he had only sought to correct the author's mistaken information about the charges against him.
The applicant said that he had severed his links with the motorcycle gang and wanted a "criminal-free lifestyle" for the future, working and spending time with his wife and four children.
The Crown did not cross-examine the applicant.

The Submissions of the Parties

The Crown submitted that the firearms offence, count 1, was an offence falling towards the upper end of the range of objective gravity, involving as it did a loaded and concealed weapon found with a commercial quantity of drugs. It was argued that the applicant's possession of the weapon was not for an innocent purpose but, rather, was connected with the supply of drugs. In oral submissions the Crown withdrew its written submission that the applicant's membership of the Comancheros gave rise to the inference that the gun was connected with his gang activities. It maintained its submission that the location of the revolver with the drugs allowed an inference to be drawn that the applicant would have used the gun to protect the drugs, although that submission too was later withdrawn by the Crown, it seems in an email sent to the Court and applicant after the conclusion of the sentencing hearing.
It was contended that the supply offence, count 2, fell towards the "lower end" of the range of objective gravity. The Crown accepted that the applicant's role was to provide a safe place for the storage of the drugs on behalf of another person, knowing that the drugs were for the purpose of supply.
The Crown pointed out that the pleas of guilty were entered by the applicant on the day of trial, and a discount on sentence in the order of 5% - 10% was an adequate reflection of the utilitarian value of the late pleas.
The Crown accepted that the applicant had some prospects of rehabilitation, albeit that they were "guarded", particularly having regard to his criminal record.
The applicant disputed the Crown's assessment of the gravity of the firearms offence, contending instead that the applicant's possession of the revolver fell below the mid-range of seriousness. Whilst it was accepted that the fact the gun was hidden and loaded elevated the gravity of the crime, as did the obliteration of the serial number from the gun, the applicant argued that the sentencing court could not have regard to the applicant's membership of an outlaw gang as a feature increasing the seriousness of the offence, and nor could it conclude that the possession of the gun was "not for an innocent purpose".
The applicant submitted to the sentencing court that he should receive a discount on sentence of between 12% and 15% to acknowledge the value of his guilty pleas, and should be regarded as having stable prospects for the future, given that he was no longer a member of a criminal gang, and had a supportive and loving family.

The Conclusions of the Sentencing Judge

In her detailed sentencing judgment her Honour set out the facts of the applicant's crimes, and summarised the evidence and submissions that had been placed before the court.
She noted the competing submissions as to the extent of the discount on sentence to be afforded the applicant in recognition of the utilitarian value of his pleas of guilty and, noting that the pleas were not entered until the date of trial, awarded him a reduction of the sentence that would otherwise have been imposed of 10%.
As to the gravity of the firearms offence, and noting the associated offence of defacing the weapon to be taken into account, her Honour concluded that it fell above the mid-range for offences of that nature. In reaching this conclusion, her Honour considered that the revolver had been loaded, concealed, had its serial number removed, and was in the possession of a person who was the subject of a FPO, who was also a member of a criminal gang.
She referred to the applicant's submission that the revolver was in his possession only for protection, and noted the absence of any challenge from the Crown to his evidence on that subject. Her Honour observed, however: "I proceed on the basis that possession even for non-criminal purposes is generally not regarded as a matter of mitigation and the fact that the possession of a prohibited firearm is for personal protection is not a matter of significant, if any, mitigation. In R v AA [2006] NSWCCA 55 Justice Rothman stated at para 46: "It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law.""
Her Honour concluded that, as both parties had submitted, the supply offence fell "well below the midrange towards the lower end of offending". She noted that the quantity of the drug was "not insignificant" and the purity, which may have been unknown to the applicant, was high. Her Honour observed: "In this instance there is a complete dearth of evidence as to the motivation for his involvement. There is no evidence as to how he came to have access to the cocaine, and there is no evidence of any expected financial reward. As I have said there is no evidence before me that the offender is a drug user. His record does not indicate that to be the case. He stated that his decision to be involved was a bad one and I am sure he appreciates it most certainly was. I proceed on an acceptance that his role was to keep the drugs in safekeeping, and he did so most likely for financial reward, otherwise for a benefit which is completely unknown to the Court. That role was attended with some planning given the secret compartment within which the drugs were held and his participation arose I find out of his membership of the Outlaw Motorcycle Gang."
She referred also to the two offences on the Form 1 document, the offence of AOABH being wholly unrelated to the principal offence.
The sentencing judge accepted that the applicant regretted his crimes, noting his unchallenged evidence as to his remorse and contrition. She was satisfied that he understood the dangerousness of drugs and firearms in the community and concluded that, notwithstanding his criminal history, his prospects of rehabilitation were reasonable, with good prospects of not re-offending.
Referring to s 3A of the Crimes (Sentencing Procedure) Act, s 3 of the Firearms Act, which sets out the principles of the statutory regime for the control of firearms, and to the decision of Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284, and particularly [108] - [112] concerning supply offences, her Honour emphasised the importance of principles of denunciation, just punishment, the protection of the community, and general deterrence in determining the sentence to be imposed upon the applicant.
She determined to impose an aggregate sentence, observing that the sentence must import a degree of accumulation, since the penalty imposed for one offence could not reflect the criminality of the other. The sentences that her Honour indicated would have been imposed individually were: 1. For count 1, and taking into account the Form 1 offence, a sentence of 6 years imprisonment with a NPP of 4 years; and 2. For count 2, taking into account the two offences on the Form 1 document, a sentence of 3 years 9 months imprisonment, with a NPP of 2 years and 3 months.
There was some slight adjustment to the ratio of sentence pursuant to s 44 of the Crimes (Sentencing Procedure) Act to accommodate the need for a degree of accumulation.

The Application to this Court

If granted leave, the applicant seeks to advance two grounds of appeal: 1. Ground 1: The sentencing judge erred in concluding that the objective seriousness of the firearms offence fell above the midrange of objective seriousness; and 2. Ground 2: The aggregate sentence is manifestly excessive.
With respect to ground 1, the applicant argues that, her Honour having concluded that the revolver was not "a tool of the trade" of drug supply, and not connected to his membership of a criminal gang, it was not open to her to assess the gravity of the offence as falling above the midrange. The Court was referred to the decisions of SY v R [2020] NSWCCA 320, Luu v R [2008] NSWCCA 285, Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170, R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43, and Ayshow v R [2011] NSWCCA 240 in support of a contention that an offence not committed in the context of other criminal activity must be assessed as less serious than those that are connected with specific crimes.
Thalari, Ayshow, and two further decisions of this Court - El Masri [2014] NSWCCA 13 and Raniga v R [2016] NSWCCA 36 - were highlighted by way of comparators to make good the argument that the sentence imposed by her Honour was "unreasonably severe", elevated as it was by the erroneously high penalty indicated for the firearms offence.
The Crown contended that the applicant had mischaracterised the findings of the sentencing judge as to the purpose for which the revolver had been in his possession and, by reference to the circumstances surrounding the applicant's possession of the gun, submitted that the assessment of the gravity of the offence was open to the sentencing judge in the exercise of the broad discretion she had in undertaking that task.
It was argued that the four decisions relied upon by the applicant to highlight the unjustly excessive nature of the sentence in fact demonstrated that it fell within the available range of sentences that could be reasonably imposed. The criminality of the applicant's crimes was not lesser than the cited decisions, with Ayshow providing a broadly similar case against which to consider the applicant's circumstances.

Determination

As the applicant conceded at the hearing of his application before this Court, the main force of his argument was his contention that her Honour was in error in assessing the gravity of the firearms offence as falling above the midrange for crimes of that nature. That is the complaint made in ground 1; ground 2 is heavily dependent upon it being made good. In my view, the applicant must fail in establishing the error complained of by ground 1 and, given the reliance of ground 2 upon it, that ground must also fail.
It is noted at the outset that her Honour was, in making an assessment of the objective gravity of the applicant's crimes, undertaking an evaluative process integral to the proper exercise of the sentencing discretion. It is an assessment which draws upon the general experience of the courts in sentencing for the similar offences: R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [13]; R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [26]; Ali v R [2010] NSWCCA 35 at [33]-[34].
The discretion is broadly based, and this Court should only interfere in its exercise if there is error of the nature delineated in House v The King (1936) 55 CLR 499; [1936] HCA 40; Mulato v R [2006] NSWCCA 282 at [37] and [46]; Salafia v R [2015] NSWCCA 141 at [90]. The applicant did not articulate any specific error.
His contention that her Honour accepted that the applicant had the firearm only for his protection and that of his family is flawed. That was not in fact the basis upon which the sentencing judge proceeded. Sentence was imposed upon the applicant for the firearms offence on the basis that his possession of it was "not for some innocent purpose".
Although the likelihood of a clear connection between the applicant's possession of a valuable quantity of cocaine and his possession of a loaded revolver, stored together, gave rise to - at the very least - "serious suspicions" that the gun was a tool of the drug trade, her Honour was constrained in reaching that conclusion by the attitude of the Crown, which argued that her Honour should not have regard to the drugs when assessing the gravity of the firearms offence, and vice versa. As her Honour observed during the proceedings on sentence, she was presented with a highly artificial factual scenario. Everything in the objective evidence suggested that the applicant's possession of the gun was directly related to his possession of the cocaine, a fact which the Crown submitted her Honour should ignore. Since the Crown did not ask a single question of the applicant in cross-examination, despite a number of aspects of his evidence that seem unsatisfactory at best, the sentencing judge was constrained in the fact finding exercise, and in assessing the gravity of the firearms offence.
Restricted by the way the Crown conducted its case, her Honour accepted that the firearm was not a tool of the drug trade. She did not, however, make a positive finding that the applicant had the firearm for his protection, or that there was no relationship between the commission of the offence and the applicant's membership of a criminal gang. In referring to the Crown's disavowal of the latter, her Honour did no more than note the Crown's position; she did not adopt it. Whilst her Honour could only act on the basis of the evidence placed before her, she was not, as she warned the Crown and the applicant during the sentence hearing, bound by the submissions of the parties.
The features that her Honour regarded as particularly significant in determining the objective gravity of the offence were that the revolver was fully loaded, it had been concealed [in a sophisticated hidden compartment] and defaced to obliterate its serial number, and the applicant was a person who - as a member of a criminal gang - was subject to a FPO and had been for some years as at the date of the offence. Insofar as the applicant claimed that he had the gun for protection, the sentencing judge observed that possession of a firearm for such a purpose was not a mitigating feature.
Her Honour referred to Regina v AA [2006] NSWCCA 55 at [46] wherein the dangerousness of persons taking the law into their own hands, whether for protection or retaliation, was emphasised. In Thalari, Johnson J pointed out, at [88], that having a loaded pistol for personal protection "was not a matter of significant, if any mitigation", since: "the policy of the legislature evinced by the enactment of the offence under 7(1), with a maximum penalty of 14 years' imprisonment, was to act as a deterrent, and to punish possession of a pistol per se […]".
Those principles must be given particular weight where, as here, the possessor of the firearm was both precluded from having firearms, by a FPO, and a member of a criminal gang. The applicant was not an otherwise law abiding member of the community who, frightened for some reason for his or her safety, obtained a firearm for defensive reasons. He was a person adjudged by the Commissioner of Police to be "not fit, in the public interest, to have possession of a firearm" (s 73 of the Firearms Act). That assessment was doubtless made because of his membership of a criminal gang.
Having regard to the evidence before her Honour, there was a clear basis upon which she could infer that, if the applicant did secure possession of a firearm for his protection, his fear of attack related directly to his role in the gang. The agreed Statement of Facts referred to the applicant as a "leader / senior member" of a "rival faction" within the Comancheros known as the "Westside Crew". One of the offences before the sentencing court (on a Form 1 document to count 2) reflected the applicant's assault upon a fellow gang member. It was open on the evidence to conclude that any risk to the applicant's safety arose from members of an opposing faction or factions within the Comancheros. The prospect of rival members of a criminal gang or gangs resolving disputes by resort to weapons is far from fanciful, and poses a significant risk to the community.
The gravity of the applicant's possession of a firearm, even if, as he asserted, it was intended for protection, could not have been mitigated by that feature.
To argue as the applicant does that features such as those referred to by the sentencing judge, in the absence of a connection with the supply of drugs, cannot elevate the gravity of the crime to a point above the midrange, is to fail to give proper weight to the dangerousness of readily accessible concealed and loaded firearms in the community, particularly in the hands of an individual specifically prohibited from having them, who was a member of a criminal gang. A weapon such as that in the applicant's possession has the capacity to do great harm and, in my conclusion, the assessment made by the sentencing judge of the gravity of the offence was open to her.
That conclusion is not affected by the earlier decisions of other courts that were highlighted by the applicant to submit that her Honour's conclusion was inconsistent with the conclusions of other sentencing courts in other cases involving the possession of a firearm.
The applicant argued that in each of SY, Thalari, Luu, AZ, and Ayshow, the assessment of objective seriousness made by the relevant sentencing judge pointed to error in this instance. However, the facts and circumstances of each of the cited cases were, generally, different to those that apply in the applicant's case, with some similarity in the decision of Ayshow.
In SY there were two offences of possessing a firearm before the court on indictment; neither weapon was loaded and no ammunition for them was found. There was no evidence as to how the offender acquired the guns, or for what purpose. The weapons were located, respectively, at a laboratory used for drug manufacture, and in a storage container associated with drug manufacture. The offences were assessed as falling in the mid-range of objective gravity. This Court (constituted by Hoeben CJ at CL, Price and Fagan JJ) concluded at [30] that the circumstances in which the weapons were held "did not suggest that possession of it was ancillary to or in readiness for the perpetration of other offences".
A conclusion of that nature was not made with respect to the circumstances of the applicant's possession of the loaded revolver, and nor could it have been.
In Thalari the applicant had in his car a loaded .22 calibre pistol, and further ammunition for the gun on his person. The part of the gun ordinarily displaying the serial number had been removed. Quantities of 3,4 methylenedioxymethylamphetamine (or ecstasy) and cannabis were also located in the car. It was held that the offender had the gun for "criminal purposes". A conclusion that the offence fell "towards the mid-range" of gravity was neither criticised nor disturbed by this Court. Whilst that conclusion took into account the applicant's criminal intent in possessing the gun, there was no evidence to suggest other than that he was a lone supplier of drugs; as opposed to a member of a criminal network.
In Luu, the applicant was in possession of a .22 calibre pistol. He faced other charges, including offences of drug supply, relying upon the deeming provisions in s 29 of the Drug Misuse and Trafficking Act. The firearms offence was found by the sentencing judge to be "in the middle range" of objective seriousness. This Court (constituted by Giles JA, Latham J, and Matthews AJ) found that assessment to have been "well open" on the evidence. There does not appear to have been any specific conclusion made at first instance concerning the features that gave rise to the assessment of the sentencing judge, and nor was the point considered in this Court. One complaint made in Luu was that there should have been a greater degree of concurrency of sentence, an argument that did not find favour on appeal, the Court concluding that the drug and firearms offences were sufficiently distinct as to justify a degree of accumulation of sentence. Luu cannot assist the applicant's argument.
The offence brought against the respondent in AZ was one reflecting his possession of a .25 calibre keyring pistol; he faced other offences including for drug supply. The keyring pistol and ammunition for it were found in a locked safe with a quantity of prohibited drugs. AZ was a person who held both a licence authorising him to possess firearms, and a permit which allowed him to lawfully hold ammunition; the pistol however, was prohibited. The sentencing judge found that AZ had "a keyring pistol in two parts, unloaded, in his safe" and "was not going about with it armed whilst actually supplying drugs". No specific finding was made as to objective gravity, a failure held to be an error when the Crown's appeal was heard in this Court. In proceeding to re-sentence, Johnson J (with whom McClellan CJ at CL and McCallum J agreed) observed, at [73]: "The legislature views possession of such an item seriously. The policy of the legislature evinced by the enactment of the offence in s.7(1) is to deter and punish possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14]. The courts must seek to implement the legislative policy to control the possession of firearms in the community "by honest citizens and not simply to disarm the criminally minded" : R v Tolley [2004] NSWCCA 165 at [53]. As it happens, the Respondent was amongst the ranks of "the criminally minded" through his drug supply activities."
In accepting the Crown's submission that the offence fell at "the middle of the range of objective seriousness for offences of this type" Johnson J referred to the location of the firearm with drugs, which gave rise to an inference adverse to AZ and bore upon the seriousness of the offence; the fact that the pistol was unloaded, although ammunition was stored with it; that it was capable of use as a concealed weapon and was without legitimate use; that, although it was in two parts, it could be quickly reassembled; and that it was stored in a safe, rather than being carried by the respondent in the act of drug supply.
There are clear differences between the circumstances surrounding AZ's possession of a firearm and the applicant's, being the secure location in which AZ had stored the gun, its disassembled and unloaded condition, the absence of a FPO against AZ, and the absence of any connection between AZ and a criminal gang.
The firearm that the applicant in Ayshow had in his possession was a 9mm self-loading pistol. His possession of it was in the context of drug and related offending, including for an offence of supplying a commercial quantity of a prohibited drug. Ayshow was stopped by police when he was driving, and his car was searched. A sock containing prohibited drugs was found wedged near the console in the driver's side footwell. In the boot of the car police found a loaded 9mm pistol, more drugs, and cash. The sentencing judge concluded that Ayshow's possession of the firearm was clearly connected with his drug trafficking activities, and fell "well within the upper range of objective seriousness for offences" of that type. A ground of appeal challenging the correctness of that assessment was abandoned at the hearing of the appeal before this Court (constituted by Bathurst CJ, James and Johnson JJ). Despite the abandonment of the ground, the Court observed that the conclusion of the sentencing judge was well supported by the evidence.
Although the applicant argued that the criminality of Ayshow's possession of a firearm was greater than his own, and thus that his own offence should have been regarded as falling below the mid-range of sentence, that contention must be rejected. Ayshow possessed a firearm for criminal purposes, specifically to facilitate his drug related crimes. The applicant possessed a firearm, as the sentencing judge concluded, for a purpose that was not an innocent one. The gravity of the offending is broadly comparable.
As a general observation, it should be noted that, other than SY, all of these authorities were decided at a time when the SNPP for an offence of possessing a prohibited pistol or firearm was 3 years; and some prior to the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 which had a significant impact upon the use to be made of any standard non-parole period in determining sentence. Care must be taken in relying upon the sentences imposed in them, having regard to the effect of the decision in Muldrock, and the increase to the SNPP for a s 7(1) Firearms Act offence that operated from 21 August 2015, with the assent of the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Bill 2015 (NSW).
I am not persuaded, either by reference to the facts and circumstances of the applicant's offence, or by consideration of other decided cases, that her Honour was in error in assessing the gravity of the firearms offence as above the mid-range. For a member of a criminal gang to be in possession of a loaded firearm, defaced to remove its identifying number, which was kept concealed and unsecured in a motor vehicle and capable of being driven to any location, at a time when that person was the subject of a FPO, is a very serious example of an offence contrary to s 7(1) of the Firearms Act. In my conclusion her Honour was right in so concluding.
Although I would grant leave to advance ground 1, it should be dismissed.
As the applicant accepted in oral submissions before this Court, his contention of error in the assessment of the objective gravity of the firearms offence was a prominent part of his argument in support of ground 2, a complaint that the aggregate sentence imposed was manifestly excessive. Ground 2 is heavily dependent upon him making ground 1 good, particularly so as there is no complaint that the indicative sentence for the supply offence wrongly elevated the sentence, or of itself points to error.
The principles that apply to a complaint of manifest excess are well established. They may be found succinctly stated in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
On the basis that the offence is properly regarded as falling above the mid-range of objective gravity, as I have concluded it is, the sentence handed down by the sentencing judge was well within the range of sentence that might be properly imposed upon the applicant. Nothing in the sentencing decisions relied upon by the applicant in support of this ground establishes the contrary position.
I have referred already to Thalari and Ayshow. Of the remaining two decisions pointed to by the applicant to demonstrate that an unjustly severe sentence was imposed upon him, neither are truly comparable. El Masri involved an assessment of the objective gravity of the firearms offence that placed it as below the mid-range; the applicant had entered an early plea of guilty resulting in a 25% discount on sentence; had suffered extra curial punishment; and was formerly a person of good character. Similarly, in Raniga, the offence was assessed as falling at the mid-range of gravity; and there was a 25% discount for an early guilty plea. Nothing can be drawn from these decisions which supports the applicant's complaint.
It is important in approaching the imposition of sentence for firearms offences to give full weight to the clear intent of the legislative scheme that criminalises possession of prohibited firearms or pistols, referred to in AZ, Thalari, and other decisions of this Court. Firearms in the hands of those not permitted to possess them, and even more so in the hands of the criminally minded who may be the subject of a prohibition order, represent a clear and profound threat to the safety of the community. No doubt for this reason, and despite the relatively low standard non-parole period that applies to such offences, the maximum penalty proscribed for offences of this nature reflects the seriousness with which the Parliament and the community view firearms offences. The rule of law and the safety of others equally are imperilled by the unauthorised possession of firearms, and such offences must be treated as serious contraventions of the criminal law - to punish offenders, to deter others, and to protect the community.
Whilst I would grant leave to advance ground 2, it too should be dismissed.

Conclusion:

I propose the following orders: 1. Leave to appeal be granted; 2. The appeal be dismissed.
IERACE J: I have had the advantage of reading Wilson J's judgment in draft form. I respectfully agree with her Honour's proposed orders and her reasons in relation to ground 2.
In relation to the first ground, namely, that the sentencing judge erred in concluding that the objective seriousness of the firearms offence fell above the midrange, I have taken a slightly different approach from Wilson J. The ground is narrow in scope and I adopt her Honour's comprehensive summary of the proceedings and of the applicant's case.

The parties' submissions as to the objective seriousness of the firearms offence

In relation to the objective seriousness of the firearms offence, counsel for the Crown stated in its written submissions: "13. The Crown says that this offending is above the mid-range of objective seriousness and towards the upper range. The Crown relies on: a. The pistol is hidden; b. The pistol is loaded; c. The pistol is found with a commercial quantity of drugs; d. [The applicant] is associated with an outlaw motor cycle gang; and, e. His possession of the weapon was not for some innocent purpose (but was in some way connected with his involvement with an outlaw motor cycle group (and, or drug supply)." (emphasis added)
Counsel for the applicant responded in his written submissions: "14. … [The applicant] reported to [the author of the sentencing assessment report] that he kept the loaded firearm in his car as he had fears for his family's safety. 15. 'Possession of a loaded gun for one's own protection is not a matter of significant, if any mitigation, since the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years' imprisonment is to deter and punish possession of firearms per se.' [R v Krstic [2005] NSWCCA 391]. 16. In my submission, the matters raised by the Crown at (c) and (d) of paragraph 13 should be regarded as neutral, they do not make the offending more serious. The submission at (e) of paragraph 13 should not be accepted, nor should [the applicant's] statement of possession for personal protection serve to mitigate the offending."
The parties thus agreed that the applicant's claimed reason for possessing the pistol, being for self-protection, was not one that could be accepted by the sentencing court as "an innocent purpose" and accordingly was not a mitigating factor. This agreed position did not change in the parties' oral submissions at the sentence hearing: "[Crown]: His purported reason for having [the firearm] is not a mitigating factor. HER HONOUR: Right. [Counsel for the applicant]: That submission is accepted your Honour and that's at paragraph 15 of my written submissions. HER HONOUR: Absolutely. …"
The Crown withdrew the emphasised passage in parentheses in par 13(e) of its written submissions, extracted above at [86], explaining that it had come to the view that it could not satisfy the Court beyond reasonable doubt that the applicant's possession of the weapon was in some way connected with his involvement with an outlaw motorcycle group ("the first proposition").
However, the Crown was careful to maintain the second proposition in the parentheses; that the weapon was in some way connected with the applicant's involvement in the drug supply ("the second proposition"): "HER HONOUR: And can I just come back to your paragraph 13(e) so that I can be perfectly sure what you're saying. Are you crossing out all of that in parenthesis after 'not for some innocent purpose'? [Crown]: But was in some way connected with his involvement with an Outlaw Motor Cycle group-- … [Crown]: I don't press that but … the drug supply still is rolled in, knowingly take part. HER HONOUR: All right, thank you, that's great. I just didn't want to cross out something."
The Crown case as to exactly how the fact that the firearm and the cocaine were secreted in the same place was to be treated, is difficult to understand, from the record of the sentence proceedings. The Crown effectively conceded that possession of the firearm was not to be regarded as "a tool of trade" of the prohibited drug dealing, because there was no evidence expressly establishing that it was intended to be used, if required, to protect the applicant's possession of the cocaine. Instead, the Crown submitted that the fact that the firearm and cocaine were kept in the same place was an aggravating factor, referring to Luu v R [2008] NSWCCA 285 at [32]; affirmed in Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [89] and Sumrein v R [2019] NSWCCA 83 at [28] and [29].
The case of Luu did not assist the Crown on this point. In that case, the applicant was convicted of prohibited drug supply and possession of two pistols, contrary to s 7(1) of the Firearms Act 1996 (NSW). The prohibited drugs and the pistols were all located in the applicant's residence. The sentencing judge concluded that the pistols were kept at the applicant's home "as part of the tools of trade of a drug dealer", a finding that was not contested on appeal: see Luu at [8]. At [32], the Court (Giles JA; Latham J; Mathews AJ) noted that: "Nor is the criminality in the possession of the pistols, and two pistols one of which was a prohibited pistol involves greater criminality than one, to any substantial degree reflected in the sentences for the drug offences. The drug dealing could be carried on without firearms; that the applicant had them in his possession in connection with his drug dealing was significant additional criminality, and there was no double counting."
That principle was affirmed in Thalari at [89] and in Sumrein at [29]. It is in the context, however, of the earlier finding of fact that the pistols were possessed as tools of trade in drug dealing.

The sentencing judge's remarks concerning the objective seriousness of the firearms offence

The sentencing judge delivered sentence 11 days after the hearing. Contrary to the Crown's written and oral submissions, it is apparent from her remarks on sentence that her Honour understood that the Crown had abandoned any connection between the firearm and the drug supply, proceeding on the basis that both the first and second propositions in par 13(e) of its written submissions had been withdrawn: "… the Crown has expressly disavowed [the firearm] was in some way connected with [the applicant's] involvement with the Outlaw Motorcycle Gang or drug supply."
The sentencing judge noted that in oral submissions the Crown had accepted that there was no evidence that the applicant intended to protect his possession of the drugs with the use of the firearm. Her Honour continued: "Emphasis was given to the fact that there was no evidence of that by way of an email exchange requesting that he do so."
Her Honour's reference to "an email exchange" was the subject of discussion at the hearing of the application. It was noted that there was no email in evidence on sentence, nor was one referred to in written or oral submissions, or elsewhere in the transcript of the proceedings. Counsel for the applicant theorised that "it would appear to be something that's been communicated to her Honour …". The respondent disagreed, taking the Court to a part of the transcript of the sentence hearing in which the Crown withdrew the first proposition in par 13(e) of its written submissions. The transcript included the following passage: "we are still apart, even having considered his submissions and ... (not transcribable) ... from my friend …". The respondent submitted: "It may be your Honours that the 'non-transcribable' reference is a reference to an email. I can't put it any higher than that but that is the only explanation I can see from an examination of the circumstances around this sentencing appeal that would explain what her Honour says in … her remarks on sentence."
I am inclined to agree with the respondent. Had her Honour been referring to an email forwarded to the Court after the sentence hearing, in which leave had been sought to reopen the submissions by agreement between the parties, one would expect that her Honour would have been specific as to that event and the email's contents. Further, the sentencing judge's reference to the email exchange "requesting that he do so" implies an email exchange between the parties, not involving the Court. Finally, the theory that at that point of its oral submissions the Crown was referring to a prior email exchange with the applicant's counsel is consistent with the Crown explaining why it had decided to withdraw part of par 13(e) of its written submissions.
The sentencing judge stated that, although the applicant perceived that his life was in danger, it did not afford him mitigation which, as noted, was consistent with the oral and written submissions of both parties. Her Honour further noted that the Crown had "expressly disavowed" that the firearms was "a tool of trade" and explained the facts that led her to the finding of the offence falling "above midrange" in objective seriousness: "I proceed on the basis that possession even for non-criminal purposes is generally not regarded as a matter of mitigation and the fact that the possession of a prohibited firearm is for personal protection is not a matter of significant, if any, mitigation. In R v AA [2006] NSWCCA 55 Justice Rothman stated at para 46: 'It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law.' In so stating I note here there is no evidence that [the applicant] had been assaulted but I do note his perception that his life was in danger, was unchallenged. Relevant to the assessment is of course that the gun was loaded, concealed, and it had been defaced, the matter on the form 1, and also he held it whilst subject to being the subject of a weapons prohibition order. To my mind the matter falls above midrange in objective seriousness. In so finding I have not proceeded on the basis that it was a tool of trade. The Crown has expressly disavowed that and I do not do so."

The parties' submissions on appeal

The parties' written and oral submissions were thorough and clearly expressed. The crux of the applicant's submission on ground 1 was, as stated in his written submissions: "If the firearm was not for the purpose of facilitating drug supply or to achieve the aims of the Outlaw Motor Cycle Gang, but instead only for defence to a perceived threat to his life and to his family, the objective seriousness of the offence could not reasonably be considered to be above the midrange of objective seriousness."
The respondent's position on the application may be stated from its written submissions just as succinctly: "… the sentencing judge's conclusion that the applicant's purpose in keeping a loaded firearm did not weigh against the objective seriousness of the offence was correct and consistent with sentencing principle, the more so because her Honour also took into account other relevant factors such as the fact that the weapon was loaded, concealed, had been defaced so as to be untraceable (being the matter on the Form 1) and was held contrary to a weapons prohibition order."
In written submissions, the respondent stated that the sentencing judge "proceeded … on the basis that the possession was not for an innocent purpose" which was "over the submissions of the Crown and the applicant". As I have noted at [88] above, the joint position of the parties in their sentence submissions was that the applicant's claim that he possessed the firearm for self-protection, did not constitute an innocent purpose. The sentencing judge's finding was thus in accordance with that joint position, rather than in opposition to it.
At the hearing of the application, counsel for the applicant maintained the applicant's position below, that possessing the firearm "for protection" was not mitigatory.
Counsel for both parties affirmed their understanding that at the sentence hearing the Crown had only withdrawn its submission that the hiding of the firearm was connected to the outlaw motorcycle gang, so that the Crown had continued to contend that the cocaine and the firearm being together in the same concealed location remained an aggravating factor.
The applicant submitted that a perusal of judgments of this Court concerning appeals against sentence involving possession of a firearm in the context of prohibited drug supply and/or manufacture offences established that a finding of objective seriousness at or approaching mid-range was associated with a finding of fact that the firearm was a "tool of trade" of drug-dealing. Since the sentencing judge had expressly rejected that finding of fact, it was submitted that fixing the objective seriousness at "above midrange" was outside her Honour's discretion, and thus constituted error. In this regard, the applicant relied upon SY v R [2020] NSWCCA 320; Luu; Thalari; and R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43.

Consideration

The application is to be assessed, of course, on the basis upon which the sentencing judge determined the objective seriousness of the firearms offence and passed sentence which, relevantly, is that there was no exacerbation of the firearm offence by virtue of its location with the cocaine. In the absence of a finding that the firearm was a tool of trade, the sentencing judge could hardly have done otherwise.
Having reviewed the above and additional authorities concerning offences contrary to s 7(1) of the Firearms Act and in association with the supply of prohibited drugs, I accept the applicant's proposition that in sentencing cases in which the possession of a firearm contrary to s 7(1) of the Firearms Act is linked to the supply and/or manufacture of prohibited drugs as a tool of trade, the objective seriousness of the s 7(1) offence is typically placed at about mid-range. On its face, this factor, considered in isolation, suggests that her Honour was at least making an unusual finding in the exercise of her discretion in fixing objective seriousness for this offence as "above midrange" where there was no connection found between that offence and the drug supply.
It is appropriate, however, to assess the sentencing judge's determination of where the objective seriousness of the firearms offence lay according to the facts as appropriately found by her Honour, to determine whether the finding of "above midrange in objective seriousness" was open on the exercise of her sentencing discretion. In that regard, certain factors weigh particularly heavily on objective seriousness. It was an agreed fact that at the relevant time the applicant was subject to a Firearm Prohibition Order ("FPO"), pursuant to s 73(1) of the Firearms Act. The effect of the order was that he not "acquire, possess or use a firearm": s 74(1) of the Firearms Act. The applicant was not being punished for contravening the FPO, which is a separate offence with a maximum penalty of imprisonment for 14 years where the firearm is a pistol: s 74(1) of the Firearms Act. Nevertheless, it is a matter that rendered the s 7(1) offence significantly more objectively serious: Alameddine v R [2020] NSWCCA 232 at [190].
The firearm was found to be in working order. It was fully loaded (six rounds) and hidden in a locked secret compartment in the centre console of the front seat of the applicant's vehicle, accessible only by turning on the rear demister which provided power to the compartment lock and a switch under the dash trim on the driver's side which could release the lock. In my view, the compartment was reasonably sophisticated in its design and operation.
In summary, in defiance of the FPO, the applicant had a fully loaded Magnum .357 revolver in working order with an obliterated serial number secreted in his vehicle in a location where it was hidden but nevertheless quickly accessible from his driver's seat. In those circumstances, there being no mitigatory explanation for possessing the firearm, it was open to conclude that the objective seriousness for the offence was at or above mid-range, thus encompassing the finding made by the sentencing judge.
Accordingly, I agree that leave to appeal on this ground as well as for ground 2 should be granted and the appeal dismissed.

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: 11 August 2021

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