Dionys v R

Judgment 1McCLELLAN CJ at CL : I agree with Hoeben J. 2ADAMS J: Introduction I agree with the judgment of Hoeben J and with his Honour's proposed orders. I wish to add a comment about an important aspect of this appeal. In respect of the possession charge, the applicant asked for 179 charges to be taken into account on a Form 1. The way in which this is to be done was explained in A ttorney General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146; 137 A Crim R 180. The fundamental point which is presently significant is the difference between sentencing for an offence with which the offender is charged before the court and offences noted on the Form !. This may be simply expressed: in no sense at all is the offender sentenced for the Form 1 offences. 3That this is so appears unambiguously from the passages in the judgment of Spigelman CJ 9with whom Wood CJ at CL, Grove, Sully and James JJ agreed) which are set out below. They deal with what his Honour described as "a divergence of approaches" within the Court. He referred (at [26]) to what he described as the "top down" approach, by which (subject to s33(3) of the Act) "the sentence should not be less than it would have been if the Form 1 offences had been included on the indictment", observing, however, that this had been rejected by this Court in R v Kay [2002] NSWCCA 286. His Honour then went on - [27] A different formulation is found in R v Bavadra (2000) 115 A Crim R 152 where Wood CJ at CL, with whom Beazley JA and Greg James J agreed, said at [31]: "... the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality". [28] Subsequent cases have also referred to "total criminality" or "overall criminality"... 29 I do not understand Wood CJ at CL's reference in Bavadra to the "totality of criminality" to suggest that a sentencing judge should determine sentences for all the offences before the judge, whether on the indictment or on the Form 1. I understand his Honour to have intended no more than the proposition ...that a sentencing judge "should give due recognition to the gravity of those offences". If, contrary to my understanding, the reference in Bavadra was intended to suggest that a sentencing judge was imposing punishment for the Form 1 offences, I would respectfully disagree that this is permissible under the statute. The focus, as I will show below, must be on "the principal offence" alone. 4The Chief Justice discussed several formulations of the applicable principle, and then moved to a resolution of the issues, commencing with a reference to the terms of the statutory power, pointing out - [35] ...The statutory scheme, like its common law predecessor, emphasises that the court is concerned and concerned only with imposing a sentence for "the principal offence"... 5After mentioning the statutory provisions dealing with the effect of taking an offence into account and the approach for which the Attorney General contended, his Honour said - [39] The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence. [Emphasis in original.] [40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, i.e. the primary offence. [42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. [This last sentence appears in 56 NSWLR as a correction for the original in the electronic and 137 A Crim R which is in the obviously mistaken form: 'The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed'.] These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. [43] I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence. [44] The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences... [45] The suggestion in the Attorney's proposed guideline that the increase in penalty should normally be specified may have been appropriate if the Attorney's basic approach were to be adopted, i.e. that in some senses sentences were being imposed for the Form 1 offences. Once that approach is rejected, specification of quantum is inappropriate. [Emphasis in original.] 6Under the heading The use of the procedure the Chief Justice referred to the considerations that should influence the determination by the Director of Public Prosecutions to place certain charges on the indictment and others on the Form 1 and then to the exercise of the relevant discretion by the sentencing judge, explaining the latter as follows - [67] By reason of the express statutory power, a sentencing judge must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences. There will be cases in which, for example, the administration of justice could be brought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow or artificial basis. I do not intend the previous sentence to constitute a comprehensive statement of the circumstances in which the broad discretion vested in the sentencing judge by s33(1)(b) can be exercised. Nevertheless, the role of the Court must be constrained, to ensure that the independence of the judicial office in an adversary system is protected... [68] Striking the appropriate balance between overloading an indictment and ensuring that the indictment - leading to conviction and to sentence for, and only for, matters on the indictment - adequately reflects the totality of the admitted criminality, is primarily a matter for the Crown. The decision of the Crown in this regard will, no doubt, be guided by the determination in this case that, when matters are 'taken into account' on a Form 1, the sentencing judge does not, in any sense, impose sentences for those offences. 7The notion conveyed by the expression in [42] concerning the right of the community "to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed" is not, with great respect altogether clear. I understand it as a reference to the need to see the particular offence charged within a context of other criminality so that the particular offence is not treated as an isolated criminal act but, where appropriate, should be seen (and punished) as part of larger scale criminality. Be this as it may, there is no justification, in my respectful view, for qualifying the essential fundamental principle articulated by the Chief Justice, that the offender is being punished only for the crime charged in the indictment. 8Counsel for the Crown in this appeal relied on R v Grube [2005] NSWCCA 140, as I understand it, in support of the contention that it was appropriate to accumulate the sentence on the possession charge with that imposed for the sale charge even though the weapons in both charges were the same, because of the large number of weapons which were the subject of the Form 1 offences. 9In Grube the appellant submitted that, where an offence, considered by itself could attract a sentence in a posited range, Form 1 offences might justify a sentence at the top of that range but no further. Hall J (Grove and Howie JJ agreeing) in the course of rejecting this submission, said - [36] Many of the 42 offences on the Form 1 involved invasions of residential premises and property stolen was of considerable value. When the court is required to take into account a multiplicity of serious offences, as in this case, it is required to allow for the total criminality revealed by the whole course of the offender's conduct as appropriately reflected in the sentence. If there was, as argued in the present application, a requirement to apply a proportionality or relativity concept, then in some circumstances, including those that arise in the present matter, there would be a risk of the imposition of a penalty that did not adequately reflect the total criminality. The seriousness of such an outcome is apparent for it would potentially, if not actually, tend to bring the administration of justice into disrepute in certain cases by mandating a process or approach that produced a manifestly inadequate sentence determined on an unduly narrow or artificial basis. 37 The number and magnitude of the offences in the Form 1 in the present matter, in my opinion, justified the sentence imposed ... which increased the sentence that was appropriate for the principal offence to reflect the total criminality that took place over a considerable period of time arising from so many offences committed over a widespread geographical area in Sydney and beyond. [The judge] was required to have regard to the elements of personal deterrence and retribution in relation to the Form 1 offences and I believe he did so without any double counting as asserted by the applicant. [Emphasis added.] 10If the italicised phrase is taken to suggest that, in punishing for the substantive charges, the court can punish additionally for the Form 1 charges, in my respectful opinion it is inconsistent with the principle for which AG's Reference No 1 of 2002 stands. The "total criminality revealed by the offender's conduct" of course includes all the offences including those on the Form 1. It was necessary, as Hall J explained, for the primary judge to have regard to the "elements of personal deterrence and retribution in relation to the Form 1 offences ". In my respectful opinion, it is simply not open to punish for the criminality involved in the Form 1 offences, nor to increase the sentence otherwise necessary in respect of the substantive offence to deter the offender from committing offences such as the substantive offence nor to exact retribution for the Form 1 offences. The Form 1 offences inform both the objective nature of the criminality involved in the substantive offence and the subjective features such as remorse and the prospects for rehabilitation and may therefore justify or even require a heavier penalty than would have been imposed had that offence stood alone. But, with respect, that sentence cannot in any sense exact retribution, that is to say, punish, for the Form 1 offences 11Subject to these comments, I respectfully agree with Hoeben J's approach to the mode by which the Form 1 offences should be taken into account in the present case. 12HOEBEN J : Offences and sentence On 16 June 2010 the applicant pleaded guilty in the Local Court at Wollongong to the following counts: Count 1 - On or between 18 June and 5 August 2009 at Wollongong in the State of New South Wales did contravene s51 of the Firearms Act on five separate occasions, namely on 18 June sold two C96 Mauser pistols to a police undercover operative; on 21 June sold a C96 Mauser pistol to a police undercover operative; on 25 June sold a C96 Mauser pistol to a police undercover operative; and on 5 August sold a Bren machine gun to a police undercover operative; the said purchasers being unauthorised to possess the said firearms by licence or permit (s51B(1) of the Firearms Act 1996); and Count 2 - On or between 18 June and 5 August 2009 at Wollongong in the State of New South Wales possessed five firearms, one of which was a prohibited firearm, the firearms not being registered and he not being authorised by licence or permit to possess the firearms (s51D(2) of the Firearms Act 1996). 13The maximum sentence for each offence was imprisonment for 20 years. Each offence had a standard non-parole period of 10 years. 14The applicant was sentenced in the District Court of New South Wales at Wollongong by Delaney DCJ on 2 December 2010 as follows: Count 1 - A term of imprisonment comprising a non-parole period of 5 years and 6 months commencing 26 August 2009 and expiring 25 February 2015 with a balance of term of 3 years and 6 months expiring 25 August 2018. Count 2 - A term of imprisonment comprising a non-parole period of 7 years and 6 months commencing 26 August 2012 and expiring 25 February 2020 with a balance of term of 4 years and 6 months expiring 25 August 2024. 15The total sentence was imprisonment with a non-parole period of 10 years and 6 months with a balance of term of 4 years and 6 months. When sentencing, his Honour took into account in respect of count 2, 179 matters on a Form 1. Of those 179 matters, 89 related to the possession of unregistered firearms. The other offences on the Form 1 concerned matters associated with the possession of such weapons. Factual background 16The applicant came under notice of the police when Strike Force Bowl was set up in May 2009 to investigate the illegal supply of firearms in the Wollongong area. During May, June and July of 2009 the applicant was identified as a "prominent figure" in the mid level supply of firearms. During the period 16-17 June 2009 police undercover operatives had telephone calls with co-offenders Kafizas and Zarakas and purchased firearms from them. 17On 18 June 2009 an undercover operative attended a restaurant known as "Pacinos Restaurant" at Corrimal pursuant to an arrangement made by Kafizas. Kafizas and Zarakas were inside. The undercover operative spoke to them and then left and a short time later returned and saw Zarakas had a Hahn Light cooler bag at his feet. Zarakas picked up the bag and unzipped it and inside were two C96 Mauser pistols and a clear resealable bag containing 59 rounds of ammunition. The undercover operative handed over $8,500 in pre-recorded money to Zarakas, picked up the cooler bag, left the restaurant and took it to his car. He then went back into the kitchen area of the restaurant and spoke to Kafizas and handed him $300. 18On 21 June 2009 police legally monitored a telephone conversation between Zarakas and the applicant. During this conversation the applicant said "You remember the last set of mags I gave you, do you think they want another set of the same?" Zarakas said "Yeah". The applicant said "I'm getting another set the same". Zarakas said "Yeah, no worries right now these automotive products from overseas, they're actually going ahead with anything that comes forward because they're all going away in a month, so anything that comes forward". This conversation was in reference to the two C96 Mauser pistols that the applicant supplied to Zarakas which he further on-sold on 18 June for $8,500. They made arrangements to meet a local cafe to discuss the supply further. After meeting with the applicant, Zarakas contacted Kafizas and they discussed supplying the 7.63 Mauser pistol that the applicant had on offer. In a telephone call on the morning of 22 June 2009 Zarakas said to the applicant "Can you put petrol in a car for me?" The applicant replied "Yeah it's already there, it's been filled up". 19Pursuant to arrangements made with Kafizas, on 25 June 2009 the undercover operative drove to the Oxford Tavern, parked his car and walked to the Grinding On Demand Cafe where he met Kafizas and Zarakas. They walked back to the undercover officer's vehicle and Zarakas opened the rear passenger door, placed a plastic bag inside and opened it to show the undercover officer a 7.63 Mauser pistol and a yellow box containing 50 cartridges for it. The undercover officer gave Zarakas $4,250 and the latter placed the money in his pocket and left. Kafizas then approached the undercover officer and was handed $600. 20In a call during the evening of 2 August 2009 the applicant and Zarakas agreed to meet in Cringila. At 9.38pm a call was recorded between Zarakas and Kafizas about a meeting. In a call the next day with his mother, Zarakas referred in code to a firearm stored in his room and believed to have been provided to him by the applicant the previous evening. 21On 5 August the undercover officer attended Pacinos Restaurant, Corrimal pursuant to an arrangement made with Kafizas and met him in the car-park area. Kafizas told him that "it" was "in a blanket" and that he would put it in the car. Kafizas went to the rear of the restaurant and collected a Bren light machine gun that was wrapped in a yellow, orange coloured blanket contained in a long black bag. He placed the Bren in the rear passenger seat of the undercover officer's car and gave the officer a box of ammunition for the Bren. The undercover officer gave Kafizas $17,000. A short time later Zarakas arrived and met Kafizas and the undercover officer and took the yellow, orange coloured blanket that was wrapped around the Bren and returned to his BMW with it. After that Zarakas drove from the restaurant to the French Quarter Cafe in Mount Ousley where he met the applicant (as observed by police). 22At 7.25pm on 5 August 2009 on Springhill Road, Port Kembla police stopped the applicant. He had $11,000 of the $17,000 paid over by the undercover operative to Kafizas for the Bren and ammunition two hours earlier. 23On 6 August 2009 the applicant attended Wollongong Police Station and declared that the money had been given to him following the sale of a car. This was clearly untrue. 24On 26 August 2009 the applicant took part in a recorded interview with police. During the interview "he made reference to a storage facility that he had in the Padstow area. (The applicant) informed investigators that contained within this storage facility was further ammunition that he was not licensed to possess". 25The police obtained a search warrant for the Renta Space Storage container at 57 Davies Road, Padstow and on execution of the warrant collected a large arsenal of firearms, firearm parts, ammunition and police issue ballistic vests. The lessee of the container was the applicant. Police itemised these firearms and noted that there were 89 unregistered firearms, numerous of them being prohibited and high powered and some having their serial numbers defaced. Police believe that the applicant was using this arsenal of firearms for the purpose of supply. Items such as firearms and ammunition located within the container were identical to those supplied to the undercover officer on 18 June and 25 June 2009. 26In relation to some of the items on the Form 1, his Honour said: "Some of the items that were the subject of these additional charges should be mentioned. Number 14, possess unregistered pistol, Astra 900 semi-automatic pistol. Number 15, possess unauthorised pistol, Astra 900 semi-automatic pistol. Number 16, possess unregistered firearm, Bentley 12 gauge shotgun. Number 20, possess unregistered pistol, Beretta semi-automatic 8000 Cougar pistol. Number 24, Mustang semi-automatic pistol. Number 26, possess firearm with defaced ID. Number 29, BSA a semi-automatic rifle. Number 35, Carl Gustav, M96 bolt action rifle. 41, Charter Arms AR7 semi-automatic rifle. 46, Remington No 4 pocket revolver. 56, possess unregistered pistol, PO8-L semi-automatic pistol. 59, Ruger MK2 semi-automatic pistol. There were in addition a number of shotguns and semi-automatic rifles. At number 80, an M1 Carbine semi-automatic rifle. These were just some of the items that were catalogued as a part of the items on the Form 1 schedule." (ROS 9.5) Remarks on sentence 27The applicant did not give oral evidence on sentence. Two affidavits sworn by him were read without objection and he was not required for cross-examination. A report by Mr Watson-Munro, forensic psychologist dated 22 November 2010, a character reference and a copy of the applicant's Justice Health file were tendered. 28At the outset it should be noted that the sentence hearing proceeded on a false basis. Counsel for the applicant advised his Honour that the weapons, the subject of count 2, were not the weapons which were the subject of count 1. He told his Honour that the weapons in count 2 were weapons which had been randomly nominated from those discovered at the storage container. This was an error in that the same five weapons were the subject of both the supply count (count 1) and the possess count (count 2). The true situation was never communicated to his Honour. 29His Honour recorded the applicant's subjective case as follows. He was born in Greece in 1951. He immigrated to Australia when he was aged seven. After leaving school, he worked for a number of employers mainly in the sales area. Up until 1990 he was working in the real estate industry. 30In the early 1990's he became involved in importing kit homes from South East Asia into Australia. This involved him spending considerable amounts of time in Indonesia. The applicant was married in 1975, but the marriage broke up in 1990. 31The applicant was involved in two motor vehicle accidents, when aged 13 and when aged 38. He was injured in both these accidents and the psychologist's report stated that he was suffering from PTSD as a result. His Honour was prepared to accept that before the events for which the applicant was arrested, he had both physical and psychological problems arising from those car accidents. However, his Honour was unable to find any connection between those conditions and the offences. 32His Honour noted that the applicant had suffered from diabetes for 10 years and that in May 2009 he was diagnosed with severe diabetic retinopathy. This had caused a reduction in his vision. A persistent problem which had become worse was his diabetic macula oedema. 33His Honour summarised the applicant's eye problems as follows: "Mr Downie said that the offender has decreased vision in both eyes due to this severe diabetic retinopathy mainly as a result of severe diabetic maculopathy. He said that the severity was such that visual prognosis was guarded and that the incarceration, he having been in custody since 26 August 2009, had led to sub-optimal follow up and treatment of this condition which contributed to his deterioration." (ROS 14.8) 34His Honour found that the plea of guilty had been entered at an early point in time so that the appellant was entitled to a discount of 25 percent. 35His Honour rejected the applicant's assertions to the Probation and Parole Service and in his affidavits, that he was merely a collector and did not expect the weapons to be used when he sold them. His Honour said: "In my opinion what he did was to sell to whoever had the money to buy irrespective of the direction in which those guns were being sent. He did not know who it was going to go to, he did not know who was going to receive them. All he knew was what money he was going to receive from the sale. In my opinion taking into account the number of firearms involved, the type of firearms involved, the amount that was paid for these firearms, the fact that they were in working order, the fact that there was ammunition available for them, the fact that they were readily available at almost a moment's notice at the request of the undercover operator indicates that these offences of both selling and possessing were at a very high level of objective seriousness." (ROS 12.5) 36His Honour assessed the supply count at slightly above the middle range of objective seriousness so that having regard to the maximum sentence and before allowing any discount, the start point for that sentence would be 12 years imprisonment. In relation to the possession count, with the 179 matters on the Form 1, his Honour assessed that offence at "well above mid-range of objective seriousness" and set the starting point for the sentence before discount at 16 years. 37In relation to relevant considerations when passing sentence, his Honour said: "I now turn to the way in which the courts approach the sentencing exercise after the degree of objective seriousness is determined. Firstly because this is a sentence after a plea of guilty, technically the standard non-parole period does not apply. Where those offences, which have a standard non-parole period, are contained in the Form 1 schedule, the standard non-parole period is not to be considered. The court is to give reasons for departing from the standard non-parole period either by increasing the sentence beyond the standard non-parole period or giving a lesser sentence. In determining those issues the court is to take into account a wide range of matters having first determined what term of imprisonment is appropriate having regard to the offence and looking at the maximum penalty and keeping the standard non-parole period as a guideline or reference point. The court now looks at the subjective case of the offender to determine whether or not the standard non-parole period should be imposed." (ROS 13.6) 38In relation to those subjective features, his Honour said: "On the question of rehabilitation it was submitted that there were strong prospects of rehabilitation and that the offender was unlikely to offend and that he had strong family support. I find that it is unlikely that he will offend again after the sentence that is going to be imposed upon him. I also note that he has strong family support. So far as his age is concerned this is not a matter of relevance in the sentencing process, however I note that the problems that he has with his eye sight may require additional assistance during the course of time that he is in custody. It was submitted that special circumstances should be found and for reasons which I will articulate shortly, I propose to do so." (ROS 15.7) His Honour found that the applicant had expressed some measure of remorse and contrition. 39In relation to the application of the standard non-parole period, his Honour said: "I consider that there are reasons to depart from the standard non-parole period in each case. Those reasons are one, that this is a plea and not a sentence after trial. Secondly, that the sentences are very significant. I have taken into account the age and medical condition of the offender and as a result I propose to vary the ratio between the head sentence and the non-parole period pursuant to s44(2) of the Crimes (Sentencing Procedure) Act to take into account a finding of special circumstances in respect of each case." (ROS 17.3) 40His Honour took into account the principle of totality and that the sentences were to be partially accumulated. His Honour noted that specific and general deterrence were relevant, but general deterrence most of all. Appeal 41The applicant relied upon the following grounds of appeal. (1) The learned sentencing judge erred in sentencing the applicant with respect to Count 2 (i.e. the possession charge) in that: (a) His Honour sentenced the applicant on the incorrect facts. (b) The sentence imposed for Count 2 ought to have been made wholly concurrent with the sentence imposed for Count 1. (2) (This ground of appeal was not pursued.) (3) The learned sentencing judge erred in sentencing the applicant in that the individual sentences imposed for Counts 1 and 2 respectively were otherwise manifestly excessive. (4) His Honour erred in his approach to sentencing pursuant to the standard non-parole period legislation. His Honour erred by engaging in a two step process (ROS 13.8). His Honour further erred by considering whether or not the standard non-parole period should be imposed. (ROS 14.1) Ground of Appeal 1 42The Crown accepted that there had been a significant factual error and that as a result, Ground of Appeal 1(a) had been made out. I should stress, however, that it was not due to any fault on the part of his Honour that this error occurred. It follows that the applicant will have to be re-sentenced in relation to count 2. 43The issue raised in Ground of Appeal 1(b) really relates to the re-sentencing process and is best dealt with there. Ground of Appeal 3 44The applicant submitted that his Honour did not have due regard to the positive aspects of his subjective case, i.e. his limited criminal history, his early plea, his good work history, his health issues and that he was unlikely to re-offend. The applicant also submitted that the sentences imposed were significantly higher than sentences reflected in the available sentencing statistics. 45As senior counsel for the applicant appreciated, the sentencing statistics in relation to sections 51B and 51D of the Firearms Act 1996 were of very limited value in that there was only a small number of cases which had been decided. 46On that issue, the observations of the Court in Yammine v R [2010] NSWCCA 123 are pertinent. That was an appeal against a sentence imposed for an offence under s51D(2). There the Court said: "49 Reference was made to sentences in other cases decided under s 51D(2). Five such cases were cited. One was a crown appeal and I shall not refer to it again. The others are R v Middlebrook [2004] NSWCCA 49, R v Gardiner [2006] NSWCCA 190, R v Brown [2006] NSWCCA 249 and R v Mack. The head sentences after appeal were respectively 2 years, 5 years, 8 years and 6 years. 50 The submission was that only Brown has produced a longer head sentence than the present case, yet the facts of that case were far worse than those of the present case. The applicant was the warehouser of a large number of prohibited weapons which he was buying and selling to criminals. He was using profits to repay drug debts. He had a very serious criminal history. 51 The Court has pointed on a number of occasions to the difficulty of demonstrating error by reference to the facts and sentences in unrelated cases. In R v George (2004) 149 A Crim R 38 at [48] this Court, constituted by Wood CJ at CL, Adams and Kirby JJ said - "We are unable to gain any meaningful assistance from a reference to these cases. It is unnecessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh (unreported, Court of Criminal Appeal, NSW, Hunt CJ at CL, McInerney and Blanch JJ, No 60728 of 1993, 9 June 1994) and R v Trevenna [2004] NSWCCA 43 at [98]-[101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing ..." 52 It appears that so few cases have been decided under s 51D(2) that no range of sentencing discretion is discernible. In my opinion error is not demonstrated by reference to those cases." 47While the sentences passed by his Honour were heavy, the objective seriousness of these offences was great. Not only was there a possession and sale of the five weapons identified in the charges, one of which was a light machine gun, but 89 other weapons, some of them semi-automatic, were included in the Form 1 schedule. The seriousness of such offences was described by Spigelman CJ in R v Brown [2006] NSWCCA 249 at [21]-[24] as follows: "21 When s51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said: "Firearm related crime is a major concern for both police and the community." 22 The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons. 23 On the facts of the present case the Applicant clearly intended to sell the firearms to criminals for profit. He had in his possession, for that purpose, an automatic self-loading rifle, which he called a "machine gun" and which was clearly capable of inflicting serious injury and also some compact "keyring" firearms, which were particularly dangerous by reason of their capacity for concealment. 24 This was a serious example of the offence under s51D." 48His Honour expressed similar concerns as to the seriousness of these offences. By reference to the sheer volume of weapons involved, the objective seriousness of the offences being considered by his Honour was much greater than that which was being considered in Brown . A particularly serious feature of these offences was that the applicant's motivation was monetary gain. Even allowing for the applicant's subjective features as his Honour did, the objective seriousness of these offences, general deterrence and denunciation required condign punishment. 49This ground of appeal has not been made out. Ground of Appeal 4 50His Honour sentenced the applicant before the recent decision of the High Court in Muldrock v The Queen [2011] HCA 39, (2011) 85 ALJR 1170 in which the High Court held that R v Way [2004] NSWCCA 131; 60 NSWLR 168 had been wrongly decided. When attempting to apply the law as it had been stated in Way , his Honour said that the standard non-parole period remained as a guide even though the applicant had pleaded guilty and made a finding as to the objective seriousness of the offences by reference to the "mid range of seriousness for offences of this kind". 51Given the applicant's success in relation to Ground of Appeal 1(a) and the need to re-sentence, the present application is not a suitable vehicle for a close examination of the decision of the High Court in Muldrock. 52What is clear from Muldrock is that a sentencing court is not to engage in a two-step process. His Honour clearly did that on this occasion. His Honour looked at the objective seriousness of the offences and made an assessment of that basis alone and then took into account the applicant's subjective features. In Muldrock the court reiterated the point made by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 537 that all the relevant factors must be identified, both subjective and objective, and then the sentence is set. 53It follows that this ground of appeal has been made out and the applicant has to be re-sentenced in respect of counts 1 and 2. Re-sentencing of applicant 54The applicant submitted that because the weapons in count 1 were the same as those in count 2, there was a clear correlation between the two offences. Possession of the weapons was a necessary precondition to the supply of those weapons. The period of time in the indictment over which the offences had occurred was also identical. In those circumstances, the applicant submitted the sentence imposed for count 2 should be wholly concurrent with that imposed for count 1. 55The applicant did not submit that the overlap between the two counts was such that he was being charged twice for the same offence so that the principle of double jeopardy applied. He accepted that the elements to be established in each count were different. Rather, he submitted that the overlap between the counts was such that by accumulating the sentences he was in fact being doubly punished. 56In that regard he relied upon Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610 where McHugh, Hayne and Callinan JJ said: "40 To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 57The applicant submitted that there was nothing in Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (the guideline judgment) to the contrary. In that regard the applicant relied upon what Spigelman CJ said at [29]: "29 I do not understand Wood CJ at CL's reference in R v Bavadra to "totality of criminality" to suggest that a sentencing judge should determine sentences for all the offences before the judge, whether on the indictment or on the Form 1. I understand his Honour to have intended no more than the proposition for which Simpson J referred to R v Bavadra as authority in R v Harris (2001) 125 A Crim R 27 at 31 [23] that a sentencing judge "... should give due recognition to the gravity of those offences." If, contrary to my understanding, the reference in R v Bavadra was intended to suggest that a sentencing judge was imposing punishment for the Form 1 offences, I would respectfully disagree that this is permissible under the statute. The focus, as I will show below, must be on "the principal offence" alone." 58The applicant submitted that even if the common elements in the two counts were not as great as he submitted, the effect of the Form 1 matters should not be such as to so substantially increase the sentence for the principal offence so that it was out of all proportion to that offence. He submitted that not only was the sentence for count 2 significantly larger than that for count 1, when the criminality was no greater, but the severity was increased by the 3 year accumulation. He submitted that this was contrary to the guideline judgment, which stated authoritatively: A sentencing court is sentencing only for the "principal offence" [39]; The important point is that the focus throughout must be on the sentence for the primary offence [43]; A sentencing judge is not imposing punishment for Form 1 offences [29]. 59In re-sentencing the Court was asked to have regard to entries in the Justice Health records relating to the applicant since his imprisonment, which indicated some further deterioration in his eyesight. This was a matter which his Honour took into account when imposing the sentence. What is recorded in the Justice Health notes goes no further than that which was predicted by the applicant's treating specialist and was before his Honour. Accordingly, this is not a matter which should affect the re-sentencing exercise. 60Apart from the effect of the decision in Muldrock , the need to re-sentence has been brought about by serious mismanagement by the Crown in the formulation of count 2. It would have been an easy matter to choose from the 89 other weapons found in the storage container a selection to provide the basis for count 2. For reasons which remain unexplained, that was not done and the Court is faced with the difficulties set out above. 61An examination of the elements and facts of the two counts to which the applicant pleaded, shows that the area of commonality relied upon is not as great as was submitted. Undoubtedly the same weapons were involved and that is an important factual consideration when sentencing for the offences. The offences themselves, however, were quite different in nature. Count 1 deals with the sale of weapons on at least three occasions. Count 2 is directed to the warehousing of firearms for sale. While an element of possession and control is essential for a sale to take place, the offences themselves are qualitatively and in fact, different. 62This is to be contrasted with the factual situation confronting the High Court in Pearce where the actions giving rise to the infliction of grievous bodily harm in each count were exactly the same so as to bring about a situation where the offender was being punished twice for the same conduct. That is not the case here. 63Moreover, the submissions by the applicant fail to have sufficient regard to the seriousness of the offences on the Form 1, in particular, that 89 weapons were involved including a large number of semi-automatic weapons and some automatic weapons. It is notorious that the possession of firearms for sale plays an important role in the perpetration by other criminals of the most serious crimes of violence in the community. 64The observations of Spigelman CJ in the guideline case go further than was set out in the applicant's submissions. The following extracts indicate his Honour's view as to the extent to which Form 1 matters can affect the length of a sentence: "18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen [1985] FCA 14; (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.) ... 42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 43 I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence." 65What is clear from the above paragraphs is that while the Court is sentencing only for the principal offence and not for the Form 1 offences, the entire point of the process is to impose a longer sentence and that the additional component may not be small. While not excluding other considerations, the Chief Justice referred specifically to greater weight being given to personal deterrence and to "the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed." 66The common factor in those elements which the Chief Justice emphasised, is that the principal offence was not an isolated instance but was part of a course of offending conduct. On the facts of this case, that course of offending conduct was substantial and serious thereby justifying a significantly longer sentence for the primary offence. 67The indictment for count 2 charges possession of the firearms during the period 18 June and 5 August 2009, i.e. on the occasions that they were delivered to the purchaser. It is not part of the agreed facts that these weapons had previously been stored by the applicant. Nevertheless, the Form 1 offences showed the true scale of the applicant's business demonstrating that he was undertaking a large-scale operation of illegal dealing with weapons of which their possession in considerable quantities was an essential element. Without punishing for the Form 1 offences as such, the punishment for the primary offence must necessarily be substantial giving appropriate regard to the Form 1 offences. 68In respect of count 1, the objective seriousness having regard to the type and number of weapons sold was substantial. The type and number of weapons sold is indicative of their being part of a substantial business of trading weapons without regard to the character of the purchaser and the inevitable consequence that some at least would end up in the hands of criminals. But for the true identity of the purchaser and the intervention of the police, the trade in weapons would have continued. Accordingly, count 1 required a heavy penalty even after giving full allowance for the applicant's subjective circumstances. Bearing in mind the maximum term of imprisonment and the standard non-parole period, I do not see how any sentence less than that which was imposed by his Honour could be justified. 69It follows that I would impose the same sentences which his Honour did in respect of counts 1 and 2. The real issue for this Court in re-sentencing and the matter which was agitated in argument before the Court is to what extent, if at all, there should be an accumulation of the sentences for counts 1 and 2. 70I do not accept the applicant's submission that the sentences for count 1 and count 2 should be wholly concurrent. I am of the opinion that there should be some accumulation to allow for the differences in the nature of the offences. Both offences were serious examples of offences of that kind. That having been said, the important factual consideration that the same weapons were involved in count 1 as were involved in count 2 cannot be ignored. It would not be principled when re-sentencing the applicant to make no allowance for that consideration and to pass the same sentence without adjustment, as if that factual background did not exist. 71Having regard to the principle of totality, but also to the factual overlap created by the same weapons forming part of counts 1 and 2, I would re-sentence the applicant so that count 2 is accumulated on count 1 by one year. The total sentence would be imprisonment with a non-parole period of 8 years and 6 months with a balance of term of 4 years and 6 months. 72The orders which I propose are as follows: