Goldberg v R

Court of Criminal Appeal (NSW)|2018-02-19|Before: Hoeben CJ, White JA, Fullerton J

The applicant's evidence at the sentence hearing

The applicant gave evidence at his sentence hearing. He acknowledged that he shot himself in the hand on the evening of 3 November 2015, but denied that he had been attempting to scare a motorcyclist. The reason the pistol was discharged was not further explained. An available inference arising from the ballistics report was that it discharged accidentally.

The findings of the sentencing judge

The sentencing judge regarded the number and type of weapons in the possession of the applicant as reflecting the seriousness of his overall offending, which his Honour described as a "very serious course of conduct". He considered the various maximum penalties that applied to each offence, and the standard non-parole period that applied to two of them, as a reflection of their seriousness. He treated the breach of s 51D(2) of the Firearms Act as the most serious of the four offences, an approach plainly open to him having regard to the maximum penalty of 20 years imprisonment against which a standard non-parole period of 10 years applied.
His Honour regarded that offence as above the mid-range of objective seriousness for the following reasons: In making my assessment in respect of the offence regarding the four firearms in my view it is necessary to have regard to the whole of the circumstances surrounding this offence. That context includes the fact that the offender used a pistol to fire a round of ammunition in a suburban street. He also possessed a vast amount of ammunition. All of the weapons were kept in an unsafe situation, they were not locked in the way in which they ought to have been locked. All of these matters can be taken into account in determining the seriousness of the possession of the weapons. Obviously it is important not to double-count or add to the length of the other sentences when making that assessment. It cannot be emphasised too strongly that these offences require particular attention being paid to general deterrence. The offender appears to have been maintaining a safe house for serious criminals to warehouse firearms that could then be used in the commission of future offences. Whilst it is true that there is no evidence that any of the weapons were used in relation to the commission of offences, that only marginally lessens the seriousness of the offending in my view.
His Honour noted that the applicant was a relatively young man and that despite having separated from his wife he retained the support of his parents. He also noted that the applicant had committed no custodial infringements as a remand prisoner and that he had been offered employment upon his release from custody.
His Honour regarded the applicant's prospects of rehabilitation as difficult to assess notwithstanding that the author of the pre-sentence report assessed him to be at a low to medium risk of reoffending. In his Honour's view, because the applicant refused to name the people with whom he was associating (being those for whom he was storing the firearms) he was exposed to the risk of being threatened upon his release from custody, thereby raising the prospect that he may be susceptible to reoffending in some unspecified way.
His Honour regarded the applicant's expressions of contrition and remorse as genuine. He also noted that the applicant had no relevant criminal record. However, he considered that the seriousness of the offences to which the applicant had pleaded guilty, together with the fact that he was storing weapons for criminals, disentitled him to a finding of good character.
In that regard he said: He has expressed contrition for his actions and that expression does appear to be genuine. The fact that he was prepared to admit in his evidence that he was storing weapons for serious criminals is also a matter going to his credit and enhances the finding that he is in fact contrite for his actions. I note that he is a person without a serious prior criminal record. That is one fact that can be used to determine that he is a person of prior good character. But the seriousness of these offences together with the fact that he was storing weapons for serious criminals is another fact that needs to be considered when assessing the character of the offender. In my view those matters disentitle this offender to a finding that he was a person of good character.

The sentence appeal

The applicant relies on four grounds of appeal: 1. The sentencing judge erred in his assessment of the objective seriousness of the offence contrary to s 51D(2) of the Firearms Act (Count 4 on the indictment). 2. The sentencing judge erred in applying the principle of general deterrence. 3. The sentencing judge erred in: 1. not taking into account that the applicant had a very limited criminal record; 2. disregarding the applicant's prior good character. 1. The aggregate sentence is manifestly excessive.

Ground 1: The sentencing judge erred in his assessment of the objective seriousness of the offence against s 51D(2) of the Firearms Act - the fourth offence

Ground 4: The aggregate sentence was manifestly excessive

It is convenient to deal with these two grounds together, it being the applicant's contention that it was largely the result of error in his Honour's approach to indicating the sentence for the fourth offence (including his approach to the appointment of that offending as above the mid-range) which has resulted in an aggregate sentence that is unreasonable and plainly unjust.
In Hughes v R [2018] NSWCCA 2 at [86], the Court (Payne JA, RA Hulme & Garling JJ) succinctly summarised the relevant principles that apply when it is contended that a sentence is manifestly excessive as follows: When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v R (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

The applicant's submissions

Mr Game SC accepted that because the indicative sentences are not amenable to appeal, it is the aggregate sentence that the applicant must persuade the Court was "unreasonable" or "plainly unjust". He submitted, however, that in an appropriate case (and, in his submission, this was one such case) an indicative sentence may be a guide to whether there is error in the imposition of the aggregate sentence. He also accepted that even were the indicative sentence the subject of the fourth offence considered to be excessive, that will not necessarily result in the Court being satisfied that the aggregate sentence is of that order (see JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] per RA Hulme J, with whom Hoeben CJ at CL and Adamson J agreed).
Mr Game also submitted that the nominal starting point of 13 years and 4 months with a non-parole period of 10 years for the sentence ultimately indicated for the fourth offence was further suggestive of the aggregate sentence being manifestly excessive, although he also accepted that was not determinative. Mr Game submitted that utilising the nominal starting point for an individual sentence was not contrary to Elsaj v R [2017] NSWCCA 124 where at [56] Hoeben CJ at CL criticised a submission where the "starting point" of an aggregate sentence was called in aid of a ground of appeal asserting manifest excess. His Honour said: The opening proposition of the applicant to the effect that "a starting point of 22 years imprisonment is manifestly excessive in this case" is wrong and unhelpful. Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that discounts for a guilty plea are to be applied to the indicative sentences, not the aggregate sentence. To the extent that there is any doubt on that issue, it has been resolved by such cases as R v Nykolyn [2012] NSWCCA 219, Subramaniam v R [2013] NSWCCA 159, JM v R [2014] NSWCCA 297 and R v Cahill [2015] NSWCCA 53. There is in fact no "starting point" in respect of the aggregate imposed in this case, either notionally or otherwise. The aggregate represents the result of the instinctive synthesis of sentencing principles by the sentencing judge having regard to the particular facts of this case and the indicative sentences. The indicative sentences are those which he would have imposed had the aggregate sentencing procedure not been available.
Finally, Mr Game submitted that the sentencing judge's assessment of the objective seriousness of the fourth offence as falling above the mid-range of objective seriousness was not open on the available evidence. He submitted that the factors to which the sentencing judge referred when making that assessment were insufficient, both singularly and/or in combination, to support a finding that the offending was above the mid-range, and that the sentence indicated for that offence has resulted in an aggregate sentence that is unreasonably excessive as a result.
A challenge to a sentencing judge's assessment of where particular offending fits in a spectrum of seriousness was considered in R v KB; R v JL; R v RJB [2011] NSWCCA 190, where Bathurst CJ (with whom Buddin and Harrison JJ agreed) said: [51] As Howie J pointed out in Mirza v R [2007] NSWCCA 248 at [16] the level of objective seriousness of a particular offence is a matter on which minds might differ. It is an assessment which is classically within the role of the sentencing judge. In Mulato v R [2006] NSWCCA 282 Spigelman CJ stated the position as follows (at [37]): "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." In that case Spigelman CJ found that the characterisation adopted by the sentencing judge was open, although he expressed hesitation in so finding. [52] In the same case, Simpson J set out the position as follows (at [46]): "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." [53] This is particularly so in the case of an offence of this nature which can occur in a very wide variety of different circumstances. That is not to say that appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato supra, emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge.
The question that arises squarely on the appeal is whether the applicant has demonstrated error in his Honour's assessment of the objective seriousness of the offending the subject of the fourth offence as above the mid-range in circumstances where this Court is obliged to exercise caution before disturbing the discretionary assessment of objective seriousness made by a sentencing judge.
In its initial submissions, prior to the sentence hearing, the Crown submitted that the offence was a serious example of a breach of s 51D(2) of the Firearms Act and that in respect of objective seriousness, it "moves beyond the lower end of the scale". After the applicant gave his evidence, and after the sentencing judge expressed the view that it was offending well above the mid-range, the Crown revised its assessment and submitted that it was open to the sentencing judge to find the offending "moved well beyond the lowest end of the scale".
In the course of the sentencing hearing his Honour was referred to R v Lachlan [2015] NSWCCA 178; 252 A Crim R 277 in support of the applicant's submission that the offence attracted a finding of objective seriousness within the mid-range and not "well above the mid-range" as his Honour had intimated would be his finding. In Lachlan, Gleeson JA considered a number of criteria identified in Mack v R [2009] NSWCCA 216 at [40] as bearing on an assessment of the objective seriousness of a breach of s 51D(2) of the Firearms Act as a useful indication of objective seriousness.
Although Blackmore DCJ was not taken in terms to each of them, and in his sentencing remarks, delivered ex tempore, he did not refer to them in terms, these criteria have been featured in a number of cases, both before and after Lachlan, in this Court's assessment of the objective seriousness of an offence against s 51D(2) of the Firearms Act when reviewing sentencing decisions at first instance.
In this case, according to that criteria, the following analysis is available: 1. The number of firearms: There were four firearms in the applicant's possession, the threshold number for the offence. 2. The number of firearms that were prohibited or pistols: Each of the firearms was a prohibited pistol. 3. The nature and type of the firearms: Two of the four firearms were in working order. A third fired intermittently, and the fourth was inoperable as it was missing certain parts 4. The purpose for which the firearms were in the applicant's possession: The applicant gave evidence that all four firearms were held on behalf of people he knew were involved in criminal activity.
His Honour was invited to find that, unlike in Lachlan where the firearms in the offender's possession were his stock in trade and sold by him for profit, there was no evidence that the applicant was in possession of the pistols for any commercial purpose, or for the purpose of supplying them to anyone other than those who had the right to claim ownership of them (being people who, on his own admission, were in the criminal milieu) and, for that reason, his offending should be regarded as less objectively serious than those who profit from the trade in weapons. His Honour responded to that submission as follows: HIS HONOUR: He was holding them for other criminals who were going to enter into serious crimes, that's worse than holding for profit. His case is well above the middle of the range. You can address that if you want to. That is my assessment. GILLETT: I understand that your Honour. Well in my submission that's a matter that has come out of his mouth and in my submission that's an element of his contrition and remorse. HIS HONOUR: I am not denying that but it's an aspect of the seriousness of what he was doing, he was [not] unintelligent, he knew what he was doing, he was holding weapons for serious criminals, he was prepared to hold an armed pistol in his own driveway and discharge it in a suburban setting. This is not out in the country somewhere, this [is] urban crime of the highest order.
Other criteria relevant to an assessment of objective seriousness identified in Lachlan and also the subject of submissions before Blackmore DCJ included: 1. Any relationship between the possession of the firearms and the drug industry: There was no evidence of any such relationship or any connection with criminal offending of any particular kind. 2. The location of the property and the security under which the firearms were stored: The three pistols were kept at 1 XX Street where they were not securely stored. The fourth firearm (which it would seem had been kept at those premises before it was given to the man who was arrested leaving the applicant's property) was loaded.
On the appeal it was submitted that in the absence of any evidence that the applicant had any intention to use any of the firearms personally (save for the occasion on which he discharged the pistol causing injury to himself, as to which there was no reliable explanation) or to sell them, and no evidence that the firearms had ever been used in the commission of any offences or any evidence as to the ultimate use to which the pistols would in fact be put, his Honour's view that the applicant's possession of the pistols on behalf of people who he knew or believed were involved in the commission of serious crimes was worse than holding them for profit was not open.
Mr Game submitted it is not to the point that his Honour did not repeat that view in his ex tempore sentencing remarks, or that this Court should limit itself to considering errors of sentencing principle or errors in a sentencing judge's approach in a published sentencing judgment as the Crown submitted it should (see Dang v R [2014] NSWCCA 47 at [32]; RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541 at [37]; Gal v R [2015] NSWCCA 242 at [39]). Mr Game submitted his Honour's attitude to the applicant's admitted purpose in having possession of the pistols, and the appointment of mid-range offending because of it, leaves no room to doubt that his Honour's strongly expressed views informed his ultimate findings of fact, including, in particular, that the offending against s 51D(2) was above the mid-range.
Mr Game submitted the same must be said of his Honour's further observations in response to the further submissions advanced on the applicant's behalf in the sentencing hearing: … He's possessed a massive amount of armament, massive amount of ammunition, he is not protected in any way in the house, there's no proper way of looking after the items, he's doing it as part of a criminal milieu that he was engaged with and it's exactly the sort of crime that the community will not accept exactly. We have had a plethora of gun crime in recent times in New South Wales, he's part of it and he's here, so he's going to wear that aspect of it because general deterrence determines, he personally might be reformed as you suggest he is but general deterrence means that he has been caught and he's going to wear the very serious sentence as a result.
Mr Game submitted that an appropriate characterisation of the applicant's conduct was as a warehouser, and while of itself that reflected serious criminality, it was of a different order to possessing large numbers of weapons for sale or otherwise profiting from large scale supply. Moreover, it was not suggested that the applicant was involved with the people on whose behalf he held the weapons (other than as a storeman) or that he had the responsibility of holding the weapons on behalf of those with whom he was actively engaged in the commission of criminal offences.

The Crown's submissions

On the appeal, the Crown submitted that it was open to his Honour to appoint the offending the subject of the s 51D(2) offences as above the mid-range and to have indicated a sentence of 10 years imprisonment and a non-parole period of 7 years and 6 months for the following reasons: 1. The circumstance of aggravation in s 51D(2) is that at least one of the firearms is a pistol or prohibited firearm. In the present case all four firearms were prohibited pistols. 2. The gold-coloured pistol seized from the man who had visited the applicant on 4 November 2015 was fully loaded and the pistols seized on 5 November 2015 were in proximity to ammunition. 3. Two of the pistols were in full working order. A third was found to have an intermittent fault during the cocking and firing process with the pistol occasionally discharging without pulling the trigger. 4. The firearms were not stored in an appropriate manner and were easily accessible to others, including the applicant's criminal associates. 5. The applicant was storing the firearms for criminal associates knowing that the firearms were to be used to commit "serious crimes". 6. The sentence to be indicated had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offences (see Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; 56 NSWLR 146 at [42]).
The Crown further submitted that the challenge to the aggregate sentence as excessive was not made out given that the aggregate sentence had to comprehend the totality of the applicant's criminality in possessing and using unregistered firearms and prohibited weapons, together with the need for the aggregate sentence to denounce the offending conduct and to reflect the need for general deterrence.
The Crown emphasised the importance of general deterrence as a consideration in sentencing for offences involving the possession of firearms. In R v Mahmud [2010] NSWCCA 219, RS Hulme J (Giles JA and Latham J agreeing) said (at [71]): In this connection it is important to recognise the legislative purpose embodied in s 51B and other similar provisions of the Firearms Act, viz, the elimination of firearms from the community except insofar as their possession is expressly authorised. The reason is clear. The possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. The courts have a duty to impose penalties that conform with the legislative intention and operate as real disincentives to those otherwise attracted to the illegal possession of firearms. (See also Lachlan at [68]; El Jamal v R [2017] NSWCCA 243 at [35].)
In short, the Crown submitted that the overall gravity of the offending in the four offences which attracted the aggregate sentence of 12 years with a non-parole period of 9 years is consistent with the proper exercise of a sentencing discretion and that it is a sentence that has not otherwise been shown to be "unreasonable" or "plainly unjust" when viewed in the context of the legislative guidance afforded by the maximum penalties provided for in the Crimes Act and the standard non-parole period that applied to two of the offences pursuant to s 54 of the Crimes (Sentencing Procedure) Act, together with the limited weight that could properly have been afforded to the applicant's subjective circumstances.

Consideration of Grounds 1 and 4

I am satisfied that his Honour's assessment of the objective seriousness of the fourth offence as above the mid-range was not a finding open to him having regard to the available evidence. I am also satisfied that after appropriate consideration is given to all relevant circumstances bearing upon the commission of that offence, and after appropriate weight is afforded to the applicant's subjective circumstances, that an indicative sentence of 10 years with a non-parole period of 7 years and 6 months was unjustifiably excessive and that the indicative sentence for that offence has been productive of an aggregate sentence that is both "unreasonable" and "plainly unjust".
Although his Honour was concerned not to sentence the applicant twice for the offending the subject of the first offence or for the offending covered by the s 166 certificate when indicating the sentence for the fourth offence, in my view he gave undue emphasis to that conduct when otherwise permissibly referring to the context of the applicant's possession of the four pistols. This has not only impacted on his Honour's assessment of that offending as above the mid-range, but it has resulted in a greater degree of notional accumulation than was warranted in the ultimate imposition of the aggregate sentence. For that additional reason, I am driven to the conclusion that his Honour's assessment of the objective seriousness of the fourth count was flawed and productive of an aggregate sentence that was "unreasonable or plainly unjust".
While the applicant's possession of pistols on behalf of people he knew were involved in a criminal milieu was an obvious feature of the offending which merited a finding that the breach of s 51D(2) of the Firearms Act was serious, in assessing the offending conduct as above the mid-range his Honour appears to have been overwhelmed by that fact without taking into account that of the four pistols in the applicant's possession (four being the threshold number for the offence), one was not in working order and a third fired only intermittently. Further, while the failure to securely store the firearms is a material consideration in the appointment of the offending across a spectrum of seriousness, the fact that the pistols were stored in unoccupied rental premises used, it would appear, as a "safe house" for the owners of the weapons, at least militated against the risk of the firearms being accessed by anyone other than the people who he was holding them for, or their nominees.
On the appeal the applicant referred to a number of authorities, not for the purpose of suggesting that there is a settled range of sentences for a breach of s 51D(2) of the Firearms Act (there being, it was conceded, too few cases for that purpose), but to reveal, in a meaningful way, the breadth of offending constituted by a breach of the prohibition against the possession of more than three unregistered pistols, and to exemplify the need for features of the offending that sometimes pull in different directions to be factored into a sentence that must ultimately be proportionate to the particular offending under consideration.
This Court has considered five cases concerning breaches of s 51D(2) of the Firearms Act since Muldrock v R [2011] HCA 39; 244 CLR 120: Dionys v R [2011] NSWCCA 272; 217 A Crim R 280; El Jamal; Lachlan; Taylor v R [2013] NSWCCA 157 and Cornish v R [2015] NSWCCA 256.
In Dionys the applicant pleaded guilty to: 1. The sale of firearms on five occasions to police undercover operatives (s 51B(1) of the Firearms Act); and 2. Possession of five firearms, one being a prohibited firearm (s 51D(2) of the Firearms Act).
Both offences carried a 20 year maximum sentence and a 10 year standard non-parole period.
179 additional offences were dealt with on a Form 1 of which 89 related to possession of unregistered firearms in a storage facility. This Court found the storage facility was, in effect, a cache of weapons maintained by the applicant for the purposes of him supplying them to others.
After applying a 25 per cent discount for the pleas of guilty, an effective sentence of 15 years with a non-parole period of 10 years and 6 months was imposed. This Court reduced that sentence to 13 years with a non-parole period of 8 years and 6 months. The Court did not uphold the ground of appeal that alleged manifest excess but found error in the approach taken by the sentencing judge to the standard non-parole period and his Honour's analysis of the facts.
The non-parole period of 5 years and 6 months with a balance of term of 3 years and 6 months for the first count was left unchanged. With regard to the s 51D(2) offence charged as the second count, a non-parole period of 7 years and 6 months with a balance of term of 4 years and 6 months was imposed. Following an order for partial accumulation, a non-parole period of 8 years and 6 months was imposed with a balance of term of 4 years and 6 months.
At the time of sentence Dionys was about 60 years old. He had diabetes and related eye sight problems. He also had post-traumatic stress disorder as a result of two car accidents.
The primary judge found that applicant was prepared to sell firearms to anyone who was prepared to pay for them, irrespective of the use to which they might be put. He assessed objective seriousness at a very high level with the first offence above the mid-range and the second offence (including the Form 1 matters) well above the mid-range.
When considering re-sentence at [67]-[68], Hoeben J described the offences as follows: The 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. In 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. (Emphasis added.)
In Taylor the applicant was sentenced for what the Court described as "a staggering range of criminal activity", including: 1. Possession of illegally imported specimens (a North American corn snake and two chameleons); 2. Receiving a Harley Davidson motor cycle; 3. Disposing of stolen property; 4. Recklessly inflicting grievous bodily harm; 5. Unauthorised possession of more than three firearms (s 51D(2) of the Firearms Act); 6. Possession of prohibited weapons (cross bows, imitation pistols, a Taser-like device, knuckledusters, push dagger and a slingshot); and 7. Dealing with the proceeds of crime.
There were a number of related offences on a Form 1 taken into account.
The offence contrary to s 51D(2) was referred to by RA Hulme J at [23]-[24]: [23] The applicant was found to be in possession in January 2009 of more than three firearms; he was in fact in possession of 30. Thirteen of them were prohibited firearms and three were pistols. They were all found at his home, many of them in a hidden room. Most of them were operable but some of them were not. One was a .22 calibre rifle found leaning against a wall in the lounge room. It had a silencer affixed. Underneath the applicant's bed were a large pistol within a leather holster and a .22 calibre shortened rifle with a loaded magazine attached. A quantity of .22 calibre ammunition was also found within the bedroom. [24] The offences on a Form 1 attaching to this count were possession of ammunition without a permit (about 700 rounds of various calibre found in the bedroom and the hidden room), not keeping a firearm safely (the loaded gun under the bed) and possession of a firearm barrel without a permit (a shotgun barrel with no serial number).
The applicant had a criminal record but it was "not one of great significance". He was on two good behaviour bonds at the time of the offending. He had been abusing ice from 2005 but had sought rehabilitation. He had a supportive family and had been a model prisoner. He was to some degree remorseful and had good prospects of rehabilitation.
After reducing the sentence by 25 per cent, a non-parole period of 4 years was imposed with a balance of term of 3 years and 6 months. The primary judge was not satisfied that the applicant was selling firearms or that they were linked to drug dealing or other unlawful activity. He did find there was no innocent explanation for the applicant's possession of them.
After partial accumulation a total effective term of 12 years with a non-parole period of 8 years and 6 months was imposed.
The sentence appeal was dismissed as "entirely unmeritorious" but for a technical error in the commencement date for the sentences.
In El Jamal, the applicant pleaded guilty to one offence contrary to s 51D(2) involving possession of four firearms, two of which were prohibited firearms and one a prohibited pistol.
A non-parole period of 4 years and 5 months was imposed with a balance of term of 2 years and 4 months. The severity appeal was dismissed.
The applicant was sentenced on the basis that he was a storeman for firearms, weapons and ammunition in a storage unit at Hoxton Park in which police located the following weapons: 1. A shortened (stock) .22 calibre Winchester Model 69 bolt action repeating rifle. There was no serial number and no magazine. This weapon was test fired and found to be in working order. Portions of the barrel and buttstock were removed with the resultant overall length being 34.3cm. This was identified as a prohibited firearm. 2. A homemade .22 calibre single shot pen gun. This was test fired and was in working order. It was capable of propelling a projectile by means of an explosive. This was identified as a prohibited firearm. 3. A 6mm airsoft calibre Galaxy model G6 repeating pistol. This was tested and deemed to not be working due to an unknown internal fault. This was identified as a prohibited firearm. 4. A small silver 6.35mm calibre Webley and Scott model hammerless self-loading pocket pistol - serial number 67785. This was not working due to having a worn hammer spring. A substitute spring was inserted and it was then capable of firing. The barrel length was approximately 6cm. This was identified as a prohibited pistol.
A bag in the unit also contained the items which were set out on a Form 1: 1. Possess ammunition without holding a license or permit (s 65(3) of the Firearms Act). 2. Possess a prohibited weapon, namely a flick knife (s 7(1) of the Weapons Prohibition Act). 3. Possess a prohibited weapon, namely a taser (s 7(1) of the Weapons Prohibition Act). 4. Possess a prohibited weapon, namely an extendable baton (s 7(1) of the Weapons Prohibition Act). 5. Possess a prohibited weapon, namely a firearm silencer (s 7(1) of the Weapons Prohibition Act).
The applicant was 29 years old at the time of the offence. He had a criminal record including a sentence of imprisonment for using a weapon to intimidate. He was on bail at the time of his arrest. The applicant had a loving and caring home environment as a child however his parent's marriage had broken down and he had abused drugs, including ice.
At [34] Hoeben CJ at CL set out his reasons for rejecting a ground of appeal asserting manifest excess: (a) The applicant was on conditional liberty at the time of the offending. (b) The nature of the firearms was significant. Shortened firearms have no legitimate purpose and are particularly dangerous because of their capacity for concealment. A similar observation can be made in relation to the .22 calibre single shot pen gun and the prohibited pistol which could easily be rendered operational. (c) The location of the firearms in immediate proximity to a substantial quantity of ammunition. (d) The weapons were given to the applicant by members of an outlaw motorcycle club. (e) It was accepted that the role of a storeman was an important one in that storing firearms is an essential prerequisite for their availability for criminal activity. (f) The applicant's use of drugs at the time of the offending was a cause for concern, rather than a mitigating circumstance. (g) The applicant's criminal history did not entitle him to leniency. (h) When regard was had to the Form 1 matters, the criminality involved was substantial, albeit found to be slightly below mid-range.
In Lachlan, the respondent was re-sentenced after a successful Crown appeal against the inadequacy of a sentence incorporating a non-parole period of 3 years and a balance of term of 2 years and 3 months for a breach of s 51D(2) involving the possession of a rifle and three shotguns, each of which was a prohibited firearm. A second offence, contrary to s 7(1) of the Prohibited Weapons Act, involved the unauthorised possession of a prohibited weapon, being a stun gun. Related offences were taken into account on a Form 1. They included additional prohibited weapons (another stun gun, an extendable baton, two tasers, two pairs of knuckledusters - see Schedule 1, cll 2(17A), 2(18), 2(18A) and 2(19) of the Weapons Prohibition Act), ammunition, firearms magazines, a firearm bolt, a knife and two balaclavas. (The possession of four prohibited weapons and the ammunition constituted five of the offences on the Form 1.) The police also found two paintball guns under the bed.
The facts relating to the s 51D(2) offence were as follows: 1. Upon execution of a search warrant four firearms were located, each of which had been "shortened" to less than the dimensions required by the Firearms Regulation 2006 (NSW), namely:

a shortened .22 rifle found on the kitchen bench (the magazine contained 15 rounds);
a shortened single barrel shotgun and a shortened double barrel shotgun, both found in a sports bag in a bedroom; and
a loaded and shortened single barrel 410 shotgun located in another bag in the same bedroom. 1. Ballistics examination revealed each firearm was in working order. The respondent's DNA was later matched to the rifle and his fingerprints were found on one of the single barrel shotguns. 2. There was evidence that the respondent had been buying and selling firearms for commercial gain.

The respondent was 19 years old when the offences were committed. He had experienced a disrupted childhood and had been using drugs since he was 13. He had a criminal record that included possession of a shortened shotgun. He was on a good behaviour bond for a driving offence at the time of his arrest.
Gleeson JA reviewed the offence against s 51D(2) as follows: [69] As to the conduct of the respondent, although he had the benefit of a finding that there was no evidence to suggest that the weapons were either used by or intended to be used by him in some criminal activity, it remains significant that the judge found that the weapons were kept for, amongst other things ... [70] Although there is no challenge to his Honour's characterisation of the firearms offence as just below the mid-range of objective seriousness, the respondent's conduct was a serious example of the offence under s 51D(2). [71] First, the circumstance of aggravation referred to in s 51D(2) is that at least one of the three unauthorised firearms in the accused's possession be a "prohibited firearm". Here, all four firearms in the respondent's possession had been shortened and hence was a prohibited firearm. [72] Secondly, and related to the first matter, shortened firearms could have no legitimate purpose. Compact firearms are particularly dangerous because of their capacity for concealment: R v Brown at [23]. This makes them suited for serious criminal activity. [73] Thirdly, all of the firearms were in working order. Two were loaded with ammunition, the other two were in a sports bag containing a quantity of ammunition and none were safely secured at the Airds premises. Again this was particularly dangerous by reason of the accessibility of the firearms to others, including associates of the respondent. [74] Fourthly, on the facts, the respondent was a young person who was in possession of the firearms for the purpose of buying and selling them for financial gain. The text messages on his mobile phone indicate that he had multiple contacts. Even accepting the judge's finding that the respondent did not have any intention of using the firearms for any criminal activity, the offence was significant because, as the judge found, by engaging in the distribution of firearms the respondent was contributing to the potential use of those weapons for purposes which may have led to serious injury or indeed death.
At [96] Gleeson JA concluded: In resentencing on the firearms offence, an appropriate commencing point is 7 years which, after the 25% discount for the plea, reduces to 5 years and 3 months. The Crown did not challenge the finding of special circumstances below or in the Court. I would make the same finding and impose a non-parole period of 3 years.
A review of these authorities further fortifies my view that the first and fourth grounds of appeal have been made out and that the Court should re-sentence the applicant.
I would wish to emphasise, however, that I am not persuaded that intervention is warranted merely because the sentence imposed on the applicant is different, even markedly so, from the comparative cases the applicant furnished with his written submissions, some of which I have summarised in the preceding paragraphs. I am acutely conscious that the decisions to which I have referred are not determinative of either the upper or lower limits of a sentencing discretion for a breach of s 51D(2) of the Firearms Act. My conclusion that the aggregate sentence imposed is manifestly excessive is not based on a comparison between the sentences imposed in other cases but because I am satisfied that, having regard to the overall offending and the personal circumstances of the applicant, the aggregate sentence exceeds a sentence properly available to encompass the overall criminality. As I have been at pains to emphasise, I consider that the sentencing error in the aggregate sentence is to a large extent informed by his Honour's approach to the assessment of the objective seriousness of the fourth offence.

Ground 3: The sentencing judge erred in failing to:

(a) take into account that the applicant had a very limited criminal record as provided for in s 21A(3)(e); and

(b) disregarding the applicant's prior good character as provided for in s 21A(3)(f).

Section 21A(3) of the Crimes (Sentencing Procedure) Act enumerates the factors which, if established by the evidence, are available to be taken into account in mitigation of sentence. They include that an offender has no significant record of previous convictions (s 21A(3)(e)), and that s/he was a person of prior good character (s 21A(3)(f)).
The applicant submitted that the failure on the part of the sentencing judge to meaningfully differentiate in the passage extracted at [53] between the applicant's absence of a criminal record and his prior good character, and to treat an absence of the former only for the purposes of determining whether he would afford any weight to the latter, was an error of sentencing principle.
The applicant submitted that despite the objective seriousness of the offences to which he pleaded guilty (including some of the offences on the Form 1) and even accepting that it was open to the sentencing judge to find that the course of criminal conduct comprehended by those offences disentitled him to a positive finding that he was a person of established good character, he was nevertheless entitled to have taken into account in mitigation of sentence that he had not previously offended against the criminal law to any relevant extent.
It is a settled sentencing principle that when an offender's prior good character (whether because the offender has no prior criminal record and/or because he calls positive evidence to attest to the fact of his good character) is relied on in mitigation of penalty, the weight to be attributed to it might be diminished, even significantly diminished, when the character or type of offences for which the offender is to be sentenced demonstrates a pattern of offending (see Aoun v R [2007] NSWCCA 292). It is also accepted that the categories of offending where good character may attract little weight are not closed. In Athos v R [2013] NSWCCA 205, Price J noted that the rationale behind reducing the weight of good character in certain circumstances was discussed by Howie J in R v Kennedy [2000] NSWCCA 527 where, at [21] - [22], Howie J said: 21 It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed. 22 Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant. But that was not this case.
Of note, the offending being considered in Athos was the possession of a prohibited firearm. While Price J considered it inarguable that general deterrence has an important role to play in offences involving the possession of prohibited firearms, he found error in the sentencing judge's approach to the assessment of the applicant's good character when sentencing him for conduct of that kind. At [45] Price J said: I am satisfied that the judge erred when he gave less weight to the applicant's good character because he was charged with offences involving the possession of prohibited firearms. It would have been perfectly acceptable for the judge to consider the question of the weight to be given to the applicant's good character in all the circumstances of the offending but, in my respectful opinion, the error occurred when the reduction in weight was tethered to the type of offence.
The applicant submitted that there was nothing in the circumstances of his offending, or his criminal antecedents, which so diminished the weight of the evidence of his good character that it should be neutralised entirely. In short, it was submitted that his limited criminal record, coupled with the fact that he had not previously come to the attention of the police, having lived an apparently pro-social life as revealed in the pre-sentence report and the two character references tendered on sentence, were matters that should have been taken into account in mitigation of sentence and that his Honour erred in not doing so.
The Crown submitted that the sentencing judge's remarks do not disclose error. His Honour noted the absence of any criminal record and acknowledged its mitigating potential. The Crown further submitted that it should be assumed that his Honour took that fact into account in the synthesis of factors integral to the sentencing process, affording it the weight he considered it deserved as part of that process.
I do not read his Honour's remarks in the way contended for by the Crown. It is one thing to note that the applicant is a person without a criminal record, a fact that can inform the question whether he is of prior good character, but that is not its only significance. In Weininger v R [2003] HCA 14; 212 CLR 629 at [58]-[59], Kirby J said: [58] The terms of par (m) also make it clear that "character" and "antecedents" are viewed by the Parliament, as by the common law, as separate considerations. Each of them is relevant to sentencing. "Antecedents" refers to any past criminal conviction, agreed or proved. Of course, past criminal convictions may also be relevant to a court's assessment of the "character" of the person being sentenced. However, for a very long time, the absence (or existence) of prior convictions and the fact that a person is a first offender have been regarded as separate and special considerations in sentencing. The absence of prior convictions (quite apart from issues of character) will usually attract more lenient punishment. In part, it recognises the fact that a first offender's lapse may be treated as exceptional, atypical and out of character. In part, it also reflects the experience of the criminal justice system that many of those who come before courts for sentencing are repeat offenders who, for that reason, must be treated more seriously because they have been repeatedly shown to be in breach of the law and have repeatedly obliged the mobilisation of the agencies established by society to defend it from crime. [59] A first offender may, or may not, otherwise have a good character. He or she may simply have been lucky in not having been apprehended before. But this fact does not justify disregard for the separate consideration of a first offender's status as such, apart from any consideration of the character of that offender. The express differentiation between the two concepts in s 16A(2)(m) makes this point abundantly plain.
Although his Honour was entitled to regard the weight of the applicant's good character as diminished by his association with criminals in the course of the index offending, his lack of criminal antecedents was worthy of some weight as an indication that his offending was "out of character", in turn supporting a finding that he is unlikely to reoffend, thereby reducing the need for the sentence to reflect the need for specific deterrence (see Ryan v R [2001] HCA 21; 206 CLR 267 at [29] and [34]), while also operating independently of the issue of good character in mitigation of sentence.

Re-sentence

Since error has been identified, it is necessary to move to re-sentence in accordance with Kentwell v R [2014] HCA 37; 252 CLR 601. In doing so, I am obliged to make my own assessment of the facts and to take into account any developments that have occurred since sentence was imposed in the District Court. In this case, additional evidence was tendered in the form of a confidential affidavit sworn by Detective Superintendent Bennett, Commander of the New South Wales Terrorism Investigations Squad. He attached a report furnished to him by Detective Sergeant Hallett and requested the Court take into account the matters outlined in that report in the event of re-sentence.
Section 23 of the Crimes (Sentencing Procedure) Act provides that a court may impose a lesser penalty than it would otherwise impose having regard to the degree to which an offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of the index offence or any other offence. In determining whether to impose a lesser penalty, and the extent of any discounted penalty, the Court is obliged to consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed)
Given the confidential nature of the information in the report and the views expressed by Detective Sergeant Hallett as to its utility, amongst other considerations bearing upon its "truthfulness, completeness and reliability", it is unnecessary to do more than record that I propose to take into account the assistance the applicant has provided to police by allowing a discount of 40 per cent for each offence (that is inclusive of the 25 per cent for the pleas of guilty) in indicating the sentences on each of the four offences. In the appointment of the aggregate sentence the discount for assistance will naturally have a flow on effect.
I consider the objective seriousness of the offending the subject of the fourth count as within the mid-range of offending against s 51D(2), but not exceeding it. In making that assessment I am guided by the approach taken by this Court in the authorities to which I have referred. While no single feature of the conduct which constitutes a breach of s 51D(2) of the Firearms Act is determinative of the level of objective seriousness for sentencing purposes, the number of weapons is a significant factor as is the purpose for which the weapons are possessed. I regard the applicant's warehousing of the four pistols for people who he knew or believed were engaged in the commission of criminal offences as not relevantly different from someone who trades in unregistered firearms for profit. In each case, it is the associated risk, if not the certainty of the proliferation of weapons which renders the offending objectively serious and which requires the imposition of a sentence (calibrated referable to the maximum penalty and the standard non-parole period) of sufficient severity to deter others from similar conduct and to denounce the conduct itself. These objectives, coupled with the need to protect the community, are in conformity with the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act.
On the other hand, the number of pistols in the applicant's possession is also relevant in determining his culpability in objective terms.
I also consider it is appropriate that the sentences to be indicated for each of the four offences to take into account the applicant's lack of criminal record as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act. I am not persuaded, however, that in the circumstances of the applicant's offending any significant weight attaches to the statements of Mr Fkiri and Mr Nicopoulos, each of whom gave a positive assessment of his prior good character, although I would not discount his previous good character entirely. I am, however, of the view that the applicant currently has demonstrated prospects of rehabilitation which can be fairly described as reasonable with what I am prepared to accept is a gathering insight into his offending as he continues to serve his sentence, reflected in the assistance he has provided to the authorities.
The combined weight of these factors has been accounted for in the appointment of each of the indicative sentences in the following table: Count Section/Offence Indicative sentence Maximum sentence 1 Discharge firearm in a public place, contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW) 1 years 9 months 10 years imprisonment 2 Possess a prohibited weapon, namely knuckledusters, without a permit, contrary to s 7(1) of the Weapons Prohibitions Act 1988 (NSW) 1 year 10 months - 1 year 5 months NPP 14 years imprisonment - 5 year standard NPP 3 Possess unauthorised firearm, namely a bolt action repeat rifle, contrary to s 7A(1) of the Firearms Act 1996 (NSW) 1 year 6 months 5 years imprisonment 4 Possess more than three unregistered firearms, at least one of which is a prohibited pistol, contrary to s 51D(2) of the Firearms Act 1996 (NSW) (after accounting for offences on Form 1) 6 years 7 months - 5 years NPP 20 years imprisonment - 10 year standard NPP

In applying the principle of totality, and conscious of the need for the reduction in the indicative sentences for the applicant's assistance not to be productive of an aggregate sentence that is unreasonably disproportionate to the nature and circumstances of those offences, I propose an aggregate sentence of 8 years and 6 months comprised of a non-parole period of 6 years and 4 months and a balance of term of 2 years and 2 months.

Orders:

I propose the following orders:
Leave to appeal granted.
The appeal is allowed.
Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 2 months expiring on 4 May 2024.

Amendments 08 June 2018 - 8 June 2018 - Pursuant to the slip rule, the orders have been amended as set out in Goldberg v R (No 2) [2018] NSWCCA 119 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: 08 June 2018

Firearms Amendment (Public Safety) Act 2002(NSW)

Firearms Regulation 2006(NSW)

Poisons and Therapeutic Goods Act 1996(NSW)

Weapons Prohibitions Act 1988(NSW)

Judgment

HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.
WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Fullerton J. Her Honour's reasons allow me to go directly to the principal ground of appeal, namely that the sentencing judge erred in his assessment of the objective seriousness of the offence under s 51D(2) of the Firearms Act 1996 (NSW). Section 51D(2) provides: "51D Unauthorised possession of firearms in aggravated circumstances … (2) A person who is in possession of more than 3 firearms any one of which is a pistol or prohibited firearm is guilty of an offence under this subsection if: (a) the firearms are not registered, and (b) the person is not authorised by a licence or permit to possess the firearms. Maximum penalty: imprisonment for 20 years."
The applicant was charged with an offence under that section in that: "… on the 5th day of November 2015 at Regents Park, in the State of New South Wales, [he] did possess more than three firearms, to wit, four (4) firearms, that were not registered of which four (4) were pistols in circumstances where [he] was not a person authorised by a licence or permit to possess those firearms."
It was an agreed fact that the four firearms of which the applicant was in possession were four prohibited pistols, one of which he had accidentally discharged on 3 November 2015 and which was the subject of a charge of firing a firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW).
The applicant pleaded guilty at the first reasonable opportunity and was given the benefit of a 25 per cent discount on sentence. As Fullerton J observes, the offence under s 51D(2) carries a maximum sentence of 20 years' imprisonment and a standard non-parole period of 10 years.
The position initially taken by the Crown in its written submissions on sentence was that the s 51D(2) offence "… moves beyond the lower end of the scale". The primary judge made it clear during the hearing that in his Honour's view the case was well above the middle of the range of seriousness. This was because the applicant was holding the weapons for other criminals who were going to enter into serious crimes. In the course of submissions his Honour said that that was worse than holding the weapons for the purpose of selling them for profit.
In his remarks on sentence the primary judge said: "The facts reveal a very serious course of conduct undertaken by this offender. The possession of weapons especially in the number and the type that have been outlined in the facts manifests the seriousness. Further the seriousness of the offences is revealed by the maximum penalties attaching to their commission together with the standard non-parole periods that apply. In particular there is a standard non-parole period of 10 years in relation to the offence of possessing three or more firearms. … In relation to the offence of possessing the four firearms, that is, the pistols, in my view it is an offence that falls above the middle of the range of seriousness. … In making my assessment in respect of the offence regarding the four firearms in my view it is necessary to have regard to the whole of the circumstances surrounding this offence. That context includes the fact that the offender used a pistol to fire a round of ammunition in a suburban street. He also possessed a vast amount of ammunition. All of the weapons were kept in an unsafe situation, they were not locked in the way in which they ought to have been locked. All of these matters can be taken into account in determining the seriousness of the possession of the weapons. Obviously it is important not to double-count or add to the length of the other sentences when making that assessment. It cannot be emphasised too strongly that these offences require particular attention being paid to general deterrence. The offender appears to have been maintaining a safe house for serious criminals to warehouse firearms that could then be used in the commission of future offences. Whilst it is true that there is no evidence that any of the weapons were used in relation to the commission of offences that only marginally lessens the seriousness of the offending in my view."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (41)

Cited By (2)