(2013) 249 CLR 571
Carroll v The Queen [2009] HCA 13
Source
Original judgment source is linked above.
Catchwords
(2013) 249 CLR 571
Carroll v The Queen [2009] HCA 13
Judgment (3 paragraphs)
[1]
Solicitors:
P M Murphy (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)
File Number(s): 2013/295015
Decision under appeal Court or tribunal: District Court
Date of Decision: 23 May 2014
Before: Walmsley SC ADCJ
File Number(s): 2013/295015
[2]
Judgment
HOEBEN CJ at CL: I agree with Button J.
HALL J: I agree with the reasons and orders proposed by Button J.
BUTTON J: This is an application for leave to appeal against an aggregate sentence imposed by Acting Judge Walmsley SC in the District Court at Armidale on 23 May 2014.
The aggregate sentence pertained to eight separate offences, five of which were Local Court offences that were placed before his Honour by way of a certificate, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). I shall turn to detail them in a moment.
The three offences that had been committed for sentence in the District Court were as follows.
Sequence five was an offence of possessing three or more unregistered firearms, one (in fact, three) of which was a prohibited firearm. That is an offence against s 51D(2) of the Firearms Act 1996 (NSW). Pursuant to s 51D(2), it carries a maximum penalty of imprisonment for 20 years, and pursuant to Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), it carries a standard non-parole period of 10 years.
Sequence three was an offence of supplying the prohibited drug cannabis leaf. Pursuant to ss 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), that offence carries a maximum penalty of imprisonment for 10 years.
Sequence eight was an offence of cultivating cannabis plants. Pursuant to s 23(1)(a) of the Drug Misuse and Trafficking Act, that offence carries a maximum penalty of imprisonment of 10 years.
Turning to the five offences on the certificate, sequence one was an offence of possessing the prohibited drug amphetamine, in the form of a few tablets. Pursuant to s 10(1) of the Drug Misuse and Trafficking Act, the maximum penalty of that wholly summary offence is imprisonment for two years.
Sequence two was an offence of possessing the prohibited drug commonly known as ecstasy, in the quantity of a few tablets. That was an offence against the same section, with the same maximum penalty.
Sequence six was an offence of possessing ammunition. Pursuant to s 65(3) of the Firearms Act, it carries a maximum penalty of a fine in the sum of $5500.
Sequence seven was an offence of possessing a prohibited weapon; namely, a crossbow, contrary to s 7(1) of the Firearms Act. It carries a maximum penalty when dealt with in the Local Court of imprisonment for two years.
Sequence nine was an offence of dealing with the proceeds of crime; namely, cash in an amount that was a little over $4900. That was a summary offence against s 193C(1) of the Crimes Act 1900 (NSW), and carried a maximum penalty of imprisonment for two years.
Finally, for completeness, sequence four was a charge of possessing cannabis leaf. It was a back-up charge to the supply, and was for that reason not the subject of a sentence.
Objective features
On 30 September 2013, the applicant was stopped by police as he was driving towards Armidale airport. He was found to possess a few tablets of amphetamines (sequence one) and a few tablets of ecstasy (sequence two). He was also found to be in possession of almost $700 in cash, which went towards establishing sequence nine.
Later that day, the police executed a search warrant at the home of the applicant near Armidale. There they found what was eventually determined to amount to 7.58 kg of cannabis in a number of vacuum-sealed bags. There was evidence from police that that cannabis could have a street value of approximately $42,000. There were also well-known indicia of drug supply such as small resealable bags, digital scales, and ledgers of money owing.
Pursuant to Sch 1 of the Drug Misuse and Trafficking Act, the quantity of cannabis that falls within the offence of supplying that prohibited drug simpliciter is anything below 25 kgs.
His Honour found that, although a large amount of the cannabis was for the use of the applicant, nevertheless he was involved in the business of supplying it.
At the back of the home, growing openly in the garden, the police located 23 immature cannabis plants. Their value could not be accurately estimated. Pursuant to Sch 1 of the Drug Misuse and Trafficking Act, the quantity of cannabis plants that falls within the offence of cultivating a prohibited plant simpliciter is anything below 250 plants.
Secreted in a safe in the home the police located eight firearms, individually sealed in heat-sealed bags. They were as follows.
First, a .22 calibre rimfire rifle with a tubular magazine capable of holding eight cartridges. Due to the fact that that rifle was self-loading, it was a prohibited weapon.
Secondly, a .22 calibre bolt action rifle, with a telescopic sight attached. It was also fitted with a silencer, which meant that it was a prohibited firearm as well.
Thirdly, a .308 calibre bolt action rifle with no stock. The fact that the firearm was shortened meant that it was, strictly speaking, a prohibited weapon. Nevertheless, the prosecution accepted that, in all likelihood, the stock had become separated from the body of the firearm through breakage rather than deliberate alteration.
Fourthly, a .410 calibre double barrel shotgun.
Fifthly, a 12 gauge single barrel shotgun.
Sixthly, a 12 gauge single barrel shotgun that had been reported stolen in October 2011.
Seventhly, a 12 gauge double barrel shotgun.
Eighthly, a 12 gauge double barrel shotgun.
Quite apart from those weapons, the police also located inside the safe a large number of shotgun cartridges and cartridges suitable for use in the .22 calibre rifles. That ammunition underpinned sequence six.
In the same location, the police located a crossbow, which led to sequence seven.
Although not the subject of charges, it is noteworthy that the police also found in the safe ammunition belts, along with arrows suitable to be fired from the crossbow.
Finally, the police located more cash bundled up inside the safe, totalling a little over $4,200. As I have said, the total amount of cash possessed by the applicant was a little over $4,900.
Subjective features
The following summary is derived from the findings made in the remarks on sentence.
The applicant pleaded guilty to all offences at the earliest opportunity. His Honour provided a discount of 25% for the utilitarian value of those pleas. That discount was disputed neither at first instance nor in this Court.
Aged 38 at the time of sentence, the applicant had grown up in Armidale and enjoyed a sound education. He was a very good sportsman as a young man, and on leaving school studied hospitality and worked in that industry. Whilst at university, he commenced using cannabis.
Almost 20 years ago, he endured a psychotic episode, during which he was walking through the streets of Armidale naked, believing that a laser was trained upon him and that he was to be shot. Since then he has suffered from the chronic and severe mental illness schizophrenia. A psychiatric report tendered on sentence showed that he had suffered from many and varied delusional beliefs, including severe ideas of reference about external forces controlling or manipulating his life. In the past, he has not been compliant with medication. The applicant has used cannabis very heavily over the years, in the belief that it mitigates his psychiatric symptoms. His Honour accepted that, on balance, the applicant was "probably psychotic" at the time of his arrest.
Quite apart from that, His Honour found that the applicant also suffers from paedophilia. Indeed, not long before the sentencing on 23 May 2014, the applicant had been sentenced in the Local Court at Armidale on 19 March 2014 for three offences of producing, disseminating or possessing child abuse material. For those offences, the applicant had received a total head sentence of imprisonment for 18 months commencing on 30 September 2013 and concluding on 29 March 2015, with a non-parole period of 12 months concluding on 29 September 2014.
Separately, the criminal record of the applicant placed before his Honour was short but instructive. In 1997, he had been fined and also placed on a bond pursuant to what was then s 556A of the Crimes Act for possessing and cultivating a prohibited drug, and possessing equipment for administration of a prohibited drug.
In 2003, he had been fined for possessing a prohibited drug, and placed on a bond for cultivating prohibited plants. In the same year, he had also been fined for possessing or using a prohibited weapon without a permit, and also fined for possessing ammunition unlawfully.
Later in 2003, the applicant was placed on a suspended sentence for supplying a prohibited drug, and fined for possessing a prohibited drug.
In 2005, he had been placed on a three year bond and fined for using a carriage service to harass or menace another person, and for intimidating a police officer.
As for the motivation for the offences, as I have shown, his Honour found that the cannabis was cultivated and possessed for the applicant's own use to a large degree, but also as part of a course of conduct of supply for profit. With regard to the firearms, his Honour found that, on the balance of probabilities, they were essentially for recreational purposes in a rural setting.
With regard to the future, his Honour was guardedly optimistic about the prospects of rehabilitation of the applicant, so long as his long-standing schizophrenia is adequately treated, and he regularly takes any and all prescribed medication.
Sentences indicated and sentence imposed
These were as follows.
For sequence five, the firearms offence, an indicative head sentence of imprisonment for five years (it was a slip for his Honour not to impose an indicative non-parole period for this standard non-parole period offence, but a notified ground of appeal based upon that slip was not pressed at the hearing).
For sequence three, the supply of cannabis, an indicative head sentence of imprisonment for three years.
For sequence eight, the cultivation of cannabis, an indicative head sentence of imprisonment for nine months.
Turning to the Local Court offences, for sequence one, possession of a few tablets of amphetamines, an indicative fixed term of imprisonment for one month.
For sequence two, possession of a few tablets of ecstasy, an indicative fixed term of imprisonment for one month.
For sequence six, possession of the ammunition, disposition pursuant to s 10A of the Crimes Sentencing Procedure Act, with no penalty imposed.
For sequence seven, possession of the crossbow, an indicative fixed term of imprisonment for six months.
Finally, for sequence nine, dealing with the cash, an indicative head sentence of imprisonment for nine months.
With regard to all offences, his Honour imposed a single aggregate head sentence of imprisonment for six years to date from 30 March 2014 and expire on 29 March 2020, with an aggregate non-parole period of three years six months to date from 30 March 2014 and expire on 29 September 2017.
Clearly enough, special circumstances were found that led to a substantial reduction in the aggregate non-parole period.
It can be seen that the aggregate sentence commenced 12 months before the Local Court sentence expired. That degree of concurrence and cumulation with regard to the pre-existing sentence for wholly separate criminality was not impugned on appeal.
Grounds of appeal
The following grounds were pressed at the hearing:
1. The learned sentencing judge erred in failing to specify the basis upon which the aggregate sentence was structured and how the overall sentence was reached by:
…
c) failing to assess the objective criminality for the separate offending inherent in the individual charges.
2. The learned sentencing judge erred in failing to give sufficient weight to the [applicant's] mental illness of schizophrenia.
3. The sentence was manifestly excessive.
Ground 1(c)
The learned sentencing judge erred in failing to specify the basis upon which the aggregate sentence was structured and how the overall sentence was reached by:
…
failing to assess the objective criminality for the separate offending inherent in the individual charges.
It was submitted in support of this ground that the sentencing judge had failed to assess adequately the objective seriousness of the offences in the remarks on sentence. That was explained in oral submissions as "the assessment or lack of assessment made of the objective criminality of the matters". It was said that the remarks on sentence contained "many mixed messages about the objective criminality". It was also said that it was very difficult to determine where precisely his Honour had found the offences for which sentence was to be imposed fell within the range of objective seriousness.
I consider that that submission cannot be accepted. That is because, at p 6 of the remarks on sentence, his Honour provided an explicit assessment of the objective seriousness of the cultivate offence, the supply offence, and the firearms offence. His Honour said the following:
…The s 23 matter is not objectively a serious one but the s 29/25(1) offence is objectively significant as I am satisfied the facts show the offender was when apprehended involved in drug selling. Though I am satisfied that he had a huge personal need for cannabis for his own consumption the presence on his premises of the usual indicia of selling such as plastic bags, scales, lists and quite a lot of cash and a lot of cannabis persuade me that he was in business.
As for the firearms offence it was a very significant example of that offence because of the number of firearms, the presence of ammunition in the near vicinity, the silencer on one of the firearms and the fact that there was no licence for any of them.
(emphasis added)
It may be that, in the course of the remarks on sentence, the learned sentencing judge referred to the objective seriousness of these three offences that had been committed for sentence to the District Court with varying degrees of emphasis and shades of meaning. But that is of no great moment. That is because the portion that I have extracted from the remarks on sentence shows that his Honour concisely, but clearly and quite adequately, assessed the objective seriousness of the three substantive offences.
For that reason, I would not uphold ground 1(c).
Ground two
The learned sentencing judge erred in failing to give sufficient weight to the [applicant's] mental illness of schizophrenia.
It was suggested to counsel for the applicant by members of the Court at the hearing that perhaps this ground should be regarded as a particular of ground three, in light of what has been said by the High Court of Australia in Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [9] and Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [22]. It was not entirely clear whether counsel for the applicant was content with that course. But because to my mind it is impossible to determine whether any objective or subjective feature was given sufficient weight by a sentencing judge without analysis of the sentence actually imposed, that is the way that I propose to regard this ground.
If the approach for which counsel contended was that ground two should be considered as a separate ground, I consider that it cannot be sustained. That is because in the remarks on sentence the sentencing judge analysed in substantial detail the evidence about the chronic mental illness of the applicant.
On either basis, I would reject ground two as a separate ground.
Ground three
The sentence was manifestly excessive.
In oral submissions, it was explained that the proposition that the aggregate head sentence of imprisonment for six years with an aggregate non-parole period of three years six months was manifestly excessive was founded on a number of factors.
First the early pleas of guilty, and the resultant discount of 25%.
Secondly, the finding by his Honour on the balance of probabilities that the applicant "had developed something of an obsession with guns and liked having them and had them in essence for recreational use on his bush property". In other words, his Honour did not find that the possession of the firearms was ancillary to the drug supply business in which the applicant was engaged; to the contrary, they were for recreational purposes only.
Thirdly, because the firearms were secured in a safe, they did not present any real danger to the community.
Fourthly and finally, the undoubted fact that the applicant has been burdened for many years by a chronic and severe mental illness, and in particular the finding of his Honour that the applicant was "probably psychotic" at the time of his arrest. It was said that the aggregate sentence did not adequately reflect those findings.
Turning to my determination, I consider that this ground can be dealt with shortly.
In my respectful opinion, his Honour made a very generous finding of fact in favour of the applicant when his Honour found firearms that included a rifle that had a silencer fitted, a rifle that was self-loading, and a number of shotguns, were for recreational purposes. Nevertheless, I accept that that finding was reasonably open, and take it into account in assessment of this ground.
I also proceed on the basis that the applicant was on balance psychotic at the time of the offences. He has undoubtedly been suffering from a debilitating mental illness for many years.
Having said that, by way of his pleas of guilty, maintained whilst represented by counsel, the applicant implicitly accepted that he was fit to stand trial, and to enter those pleas. Those pleas also, of course, solemnly eschewed any reliance on the defence of mental illness leading to a special verdict. Finally, it can be seen from the drug and proceeds of crime offences that, despite his mental illness, the applicant was capable of running a financially successful and well organised illegal business, including keeping careful note of sums owed by various customers.
I accept that the mental illness of the applicant made him a less suitable instrument for the expression of general and personal deterrence. To be weighed against that is the fact that he had offended not only with regard to supplying prohibited drugs in the past, but also with regard to possessing or using a prohibited weapon, as well as possessing ammunition unlawfully.
Separately, contrary to the submission of counsel for the applicant, I consider that the extreme danger occasioned to members of the community by the possession by a floridly mentally ill man (who believes that his life is being influenced by malignant external forces) of shotguns, a self-loading rifle capable of firing eight projectiles without interruption, and a silenced firearm, along with a great deal of ammunition suitable for discharge in those weapons, is thoroughly self-evident. And that is the case whether that possession occurs in an urban, a rural, or even an extremely isolated outback setting. As well as that, it is not uncommon for criminals to target regional and rural premises in order to steal firearms that are secured, or to take them by force. For more than one reason, the fact that the firearms were secured gives one very little comfort. To my mind, the firearms offence was very serious indeed.
Speaking concisely, the indicative head sentence provided for the firearms offence of imprisonment for five years, when seen in its context, along with the context of the maximum penalty and standard non-parole period provided by Parliament for the offence, goes no way towards supporting the proposition that the aggregate sentence actually imposed is manifestly excessive. Indeed, I respectfully regard that indicative head sentence as quite a lenient one, even taking into account the powerful subjective aspects of the matter.
Similarly, I am not persuaded that the aggregate head sentence and aggregate non-parole period bespeak error by way of being manifestly excessive, especially bearing in mind that they encompassed the wholly separate offending with regard to prohibited drugs and plants. To the contrary, I consider that each of them was soundly within the exercise of the sentencing discretion by his Honour.
I would not uphold ground three.
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
[3]
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Decision last updated: 24 September 2015