KC v R

Court of Criminal Appeal (NSW)|2009-04-08|Before: Grove J, Howie J, Buddin J

JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 3

1 Grant leave to appeal. 2 Allow the appeal (in part). DECISION: 3 Quash the sentence imposed in respect of count 3. 4 In substitution therefore sentence the applicant to a non-parole period of two years to commence on 26 June 2008 and to expire on 25 June 2010 with a total term of 3 years imprisonment to expire on 25 June 2011. I find special circumstances because of the accumulation of this sentence. 5 Confirm all the other sentences and confirm that the earliest date upon which the applicant is eligible for release on parole is 25 August 2011.

CATCHWORDS: Sentencing - offences of selling and using prohibited firearms - asserted errors in relation to assessment of objective seriousness where standard non-parole period applied - complaint about manner in which sentences structured - whether sentences manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996

Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No1 of 2002) (2002) 56 NSWLR 146 Brown v R [2006] NSWCCA 249 Graham v R [2008] NSWCCA 309 McCullough v R [2009] NSWCCA 94 Natoli v R [2009] NSWCCA 36 R v AJP (2004) 150 A Crim R 575 R v Cromarty (2004) 144 A Crim R 515 CASES CITED : R v Dunn [2003] NSWCCA 169 R v Gent (2005) 162 A Crim R 29 R v Howard [2004] NSWCCA 348 R v Morgan (1993) 70 A Crim R 368 R v Najem [2008] NSWCCA 32 R v Sukkar (2006) 172 A Crim R 151 R v Way (2004) 60 NSWLR 168 SGJ v R; KU v R [2008] NSWCCA 258 Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: KC (Applicant) Regina (Respondent)

COUNSEL: N Mikhaiel (Applicant) V Lydiard (Crown) (Respondent)

SOLICITORS: S O'Connor (Solicitor Legal Aid Commission) (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/10428

GROVE J HOWIE J BUDDIN J

FRIDAY 17 APRIL 2009 KC v R Judgment 1 GROVE J: I agree with Buddin J. 2 HOWIE J: I agree with Buddin J. 3 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his pleas of guilty to an indictment containing five counts. Count 1 alleged that he sold a prohibited pistol to a person not authorised to possess it. The maximum penalty for that offence is imprisonment for 20 years. Count 2 alleged that he sold a firearm part without being authorised to do so. The maximum penalty for that offence is imprisonment for 10 years. Count 3 alleged that he possessed a prohibited pistol without being authorised to do so. The maximum penalty for that offence is imprisonment for 14 years and a standard non-parole period of 3 years is applicable to it. Count 4 alleged that he possessed a prohibited weapon without being authorised to do so. The maximum penalty for that offence is also imprisonment for 14 years. Count 5 alleged that he possessed a barrel for a prohibited pistol without being authorised to do so. The maximum penalty for that offence is imprisonment for 5 years. The applicant also requested that two further offences, of possessing ammunition, be taken into account on sentence. 4 The sentencing judge imposed the following sentences. In respect of count 2, a fixed term of 10 months imprisonment to commence on 26 August 2007 was imposed. In respect of count 5, a fixed term of 6 months to commence on 26 December 2007 was imposed. In respect of count 4, a fixed term of 2 years imprisonment to date from 26 December 2007 was imposed. In respect of count 3, a fixed term of 2 years imprisonment to date from 26 June 2008 was imposed. In respect of count 1, and taking into account the Form 1 matters, a non-parole period of 2 years 2 months with a total term of 5 years 2 months to commence on 26 June 2009 was imposed. The effective non-parole period is thus one of 4 years which will expire on 25 August 2011 whilst the total term is one of 7 years which will expire on 25 August 2014. It is apparent from the manner in which the sentences were structured that the sentencing judge found "special circumstances" in imposing sentence in respect of count 1. 5 As there is no dispute about the facts they can be briefly stated. In September 2005, the Firearms Crime Squad of the State Crime Command established strike force Kessell. During the period that the strike force operated, ongoing negotiations relating to the supply of firearms by the applicant to an undercover law enforcement officer (UCO) were recorded by virtue of telephone and listening device intercepts. On 17 October 2005 police caused the amount of $4000 to be deposited into the applicant's bank account. That money was provided to him in order to facilitate the supply by him of illicit firearms. 6 On 29 December 2005, the UCO attended a public parking area in Kingscliff New South Wales where he met with the applicant who supplied him with a Norinco .45 calibre pistol with a magazine. The weapon was examined by a forensic ballistics expert who certified that it was a "prohibited pistol" within the meaning of s 4C of the Firearms Act 1996 (those facts constitute count 1). On the same occasion the applicant supplied 4 .45 calibre magazines with a ten round capacity for use in the pistol (those facts constitute count 2). The first of the offences on the Form 1 also occurred on this occasion. It arose from the applicant's possession of 750 rounds of .45 calibre ammunition which was suitable for use in the pistol which he had sold to the UCO. The sale price of the items to which counts 1 and 2 related was $3500. As a result the applicant returned $500 to the UCO being the balance of the original sum of $4000 with which he had been provided. 7 Following a number of phone calls between 29 December 2005 and 2 May 2006, which in the main were instigated by the UCO, the applicant agreed to meet with the UCO again. On 2 May the applicant met with the UCO at Kingscliff. At the time the applicant had in his possession a .22 calibre Jennings semi automatic pistol (those facts constitute count 3). He was also found to have in his possession a silencer that was capable of being screwed onto the end of the Jennings pistol (those facts constitute count 4). The applicant was also found to be in possession of a spare firearm barrel which was suitable for the Jennings pistol (those facts constitute counts 5). The second offence on the Form 1 occurred on this occasion and arose from the applicant's possession of 25 live rounds of .22 calibre ammunition which was suitable for use in the pistol. The applicant was then arrested. So far as counts 3 - 5 are concerned the applicant is not the holder of a license or a permit to possess firearms. 8 Background information about the applicant emerged from a pre-sentence report and a report from a psychologist as well as from the sworn evidence which the applicant himself gave. The applicant was born on 2 September 1953 and accordingly was 52 when he committed these offences. At the time of the offences the applicant was working as a carpenter. There was evidence that his partner, together with his daughter and grandson who live in Queensland, remained supportive of him. The psychologist diagnosed the applicant as having a depressive and dependent personality. The psychologist went on to observe that "currently and for the first time in his life he appears to be thinking more carefully about the consequences [of his actions] in part due to his new-found sense of connection to his daughter's family". However, the psychologist also observed that the applicant had "showed little evidence of having insight into his behaviour". The sentencing judge accepted that assessment and said that the applicant: tended to blame the undercover officer for his involvement and justified his conduct in respect of the May firearms offence on the basis that he stipulated the firearm was not to be sold, that it was a loan for someone else. 9 The sentencing judge made these observations about the offences to which the applicant had pleaded guilty: Quite obviously these are objectively very serious offences as is reflected in the maximum penalties. The possession and sale of prohibited weapons and firearm parts is a matter of major concern in the community. These weapons have no legitimate purpose and the offender must have known it was likely that they would be used in connection with serious criminal activity. 10 Criticism was made of those remarks. It was submitted that "it is impermissible to sentence an offender on the basis that this possession was for an illegal purpose that would have amounted to a more serious unproven offence [because to do so] would infringe the principle in De Simoni (1981) 147 CLR 383". In my view the submission is without substance. What her Honour said was not only open to her but plainly inescapable. Moreover, counsel was unable to point to any benign purpose that the applicant may have had for having the weapons in his possession. 11 In R v Najem [2008] NSWCCA 32 Hulme J, with the concurrence of the other members of the court, said of the rationale behind s 7(1) of the Firearms Act: [It] includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights. [par 40] 12 Those remarks are apposite to the present case. 13 The sentencing judge also rejected a submission that the applicant's sentence for the offences committed on 2 May 2006 should be reduced because of his entrapment by the UCO. Her Honour pointed out that the only evidence upon the issue were the phone calls between 29 December 2005 and 2 May 2006 that were said to be "instigated in the main by the undercover officer". Her Honour concluded that: [o]n that scant evidence I am not prepared to reduce the sentences on the basis that the offender was induced to commit an offence which he would not otherwise have committed. The offender's conduct must be assessed in the light of his earlier preparedness to sell to a stranger a prohibited pistol and provide magazines with a ten round capacity for use in that weapon. 14 The sentencing judge extended a combined discount of 50% to the applicant for his pleas of guilty, which were described as having been entered at the first available opportunity, and for his assistance to authorities. It is neither necessary nor appropriate to refer to the details of that assistance. Suffice it to say that the sentencing judge observed that: [t]he assistance was extremely useful and also truthful and reliable. I am satisfied that [the applicant] is in danger of injury should the details of that assistance become known to those to whom it is relevant, some of whom are in custody. There is no material before me that [the applicant] will suffer harsher custodial conditions because of his assistance. 15 A little later the sentencing judge said that: [t]here is some evidence of remorse, the most tangible being the assistance [he] has provided to the authorities. Whilst this could also be, at least in part motivated by self interest I am prepared to accept [his] evidence that he has 'had enough of this life and doesn't want to be in gaol and away from his family'. 16 It is of considerable significance that the applicant had a prior criminal record which contained entries for a number of particularly serious offences. In 1977 in the District Court he received a sentence of 12 years imprisonment for an offence of armed robbery. For an offence of escaping from lawful custody, and taking into account two offences of larceny, a further sentence of 4 years imprisonment was fixed. A non-parole period of approximately 7 years was imposed in respect of those offences. The following year two further counts of larceny attracted a concurrent sentence of 2 years imprisonment. In November 1983 in the Supreme Court of Queensland, the applicant was sentenced to 15 years imprisonment for armed robbery with violence committed in company. A concurrent sentence of 4 years imprisonment was fixed for the unlawful use of a motor vehicle which was used in the commission of an indictable offence. The applicant was to be considered for parole after 5 years. The following year concurrent sentences of short duration were imposed for two counts of possessing firearms. In August 1994 in the District Court the applicant was sentenced to a minimum term of 8 years imprisonment with an additional term of 4 years for offences of armed robbery and shoot with intention to avoid apprehension. There are several other matters on the record but they are of a minor nature only and in each case attracted a pecuniary penalty. 17 At the time of the present offences, the applicant was on parole for the offences committed in Queensland. That parole order had been suspended whilst the applicant was serving the sentences imposed in 1994 in New South Wales. It was suspended again following his arrest upon these matters as the applicant did not have permission to be in New South Wales. He then served about 10 months in Queensland before he was released on parole. The sentencing judge backdated the commencement of the present sentences to allow the applicant the benefit of the whole of that period of time in custody. 18 The applicant relies upon the following grounds of Appeal: 1 The learned sentencing judge erred in taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness of counts 3 and 4 as falling above the mid-range; 2 The learned sentencing judge erred in assessing the objective seriousness of counts 3 and 4 as falling above the mid range; 3 The learning sentencing judge erred in imposing fixed terms in respect of counts 3 and 4; 4 The learned sentencing judge erred in accumulating the sentences in the manner in which she did; 5 The sentence imposed was manifestly excessive.

Grounds 1 and 2 19 These grounds may conveniently be dealt with together. The sentencing judge said that "counts 3 and 4 are subject to a standard non-parole of three years. In my view both offences fall above the mid-range of objective gravity given that the offender was on conditional liberty". However the sentencing judge erred in stating that the offence in respect of count 4 was subject to a standard non-parole period and in fact it was only the offence which gave rise to count 3 which was the subject of a standard non-parole period. Accordingly, the first three grounds were argued with that consideration in mind. The fact that the applicant was on conditional liberty at the time that he committed these offences was an aggravating factor of considerable significance in determining the overall sentence which was to be imposed upon the applicant. It is common ground however that the sentencing judge erred in taking that factor into account in assessing where the offence, which gave rise to count 3, lay on the scale of objective seriousness. In R v AJP (2004) 150 A Crim R 575 Simpson J, after referring to R v Way (2004) 60 NSWLR 168 observed that "factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness" (at 580). Error has thus been established. It is not suggested that her Honour had otherwise erred in her assessment of the objective seriousness of the offence which gave rise to count 3.

Ground 3 20 This ground can also be dealt with briefly. In SGJ v R; KU v R [2008] NSWCCA 258 and Graham v R [2008] NSWCCA 309 this court held that, by reason of s 45(1) of the Crimes (Sentencing Procedure) Act 1999, it is an error to set a fixed term of imprisonment for an offence which is the subject of a standard non-parole period. Because the offence to which count 3 gave rise was subject to a standard non-parole period, it is again common ground that error has been established. Counsel conceded however that this error was of an entirely technical kind.

Grounds 4 and 5 21 It is convenient to adopt the same course as counsel for the applicant did, and consider these two grounds together. 22 I shall deal first with the complaint that the manner in which the sentences were structured, and in particular the extent to which the sentences were accumulated, has led to the imposition of manifestly excessive sentences. 23 In Natoli v R [2009] NSWCCA 36, James J, who wrote the leading judgment, said: The principles to be applied in sentencing for multiple offences were concisely stated by Ipp JA, with the concurrence of the other members of the court, in R v Weldon (2002) 136 A Crim R 55 at 62. His Honour said at par 46-48:- "[46] A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case Hoare v The Queen (1989) 167 CLR 348.

[47] The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

[48] It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622)." In Cahyahi v The Queen (2007) 168 A Crim R 41 Howie J, with the concurrence of the other members of the court, said at 47 (27):- "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." [at pars 32-33] 24 The manner in which the sentences were structured has had the effect that the sentences imposed in respect of counts 4 and 5 were entirely subsumed within the sentences imposed in respect of other counts. Furthermore, 12 months (or 50%) of the sentence imposed in respect of count 3, was made wholly concurrent with the sentence imposed in respect of count 1. In those circumstances, I am not persuaded that error has been demonstrated in relation to this aspect of the matter. 25 It was then submitted that counts 3 and 4 were matters that could have been disposed of in the Local Court. It was contended that statistics maintained by the Judicial Commission revealed that the vast majority of these types of offences are dealt with in the Local Court. The short answer to that submission is that, as the Crown correctly points out, the objective seriousness of the various offences with which the applicant was charged, together with his antecedents, effectively precluded the matters from being dealt with in the Local Court. See generally the discussion in R v Gent (2005) 162 A Crim R 29 at paras 76-92 and in McCullough v R [2009] NSWCCA 94 at paras 21-27. 26 It was next contended that there "was no evidence that the applicant was to benefit financially from the transactions". Regardless of what significance that factor may have had, there was nevertheless evidence that the applicant did stand to obtain a benefit from his involvement in these transactions. It emerged from the following exchange which took place whilst the applicant was giving evidence: Q. In relation to this particular offence and particularly count 1, would it be fair to say that that offence was committed by you purely for financial gain? A. There was no financial, I was doing it, the guy who rang me said he was a friend of someone else and they just needed it and I would do them a favour.

Q. But certainly you received in the end $3500? A. That was what the gun cost and I gave him back the other money.

Q. Why would you do such a thing, I just don't accept there wasn't financial gain in it, you didn't know the undercover officer did you? A. No, I was doing-the other guy that rang me, that introduced me to him, asked me if I'd do him a favour, a big favour, because I owed that guy some money as well and he said "would you do me a favour and find him a gun", which I did, it took me a long time and I just said that's how much it cost me and there's the money, I could've kept it but I didn't.

27 The applicant also contended that the offences were rendered objectively less serious because they were supplied to an undercover officer with the result that any harm that may have been occasioned to the public was thus eliminated. As this court said in R v Way (supra), in respect of the sale of drugs to an undercover officer, such a consideration has only limited relevance particularly as it was a "circumstance [that] was not due to any act on the part of the offender" (at par 172). Similar reasoning should be applied to an offence of the present kind. 28 The applicant also sought to rely upon four authorities which were said to bear some comparability to the present case. The authorities referred to were R v Dunn [2003] NSWCCA 169; R v Cromarty (2004) 144 A Crim R 515; R v Howard [2004] NSWCCA 348 and Brown v R [2006] NSWCCA 249. I am bound to say that I have derived little assistance from an examination of those authorities given the inevitable differences in the factual circumstances to which the various cases give rise and because of the limited sample of cases to which the court was referred. Similar reservations were expressed in Brown (supra) [at pars 25-32] and in R v Morgan (1993) 70 A Crim R 368 at 371. 29 In any event both Dunn and Cromarty were sentences imposed after successful Crown appeals. The sentencing process in Dunn was also affected by the fact that that offender stood for sentence in relation to other offences and consequently questions of totality arose. Cromarty was 61 and was found in possession of a large number of prohibited weapons. However, he was obsessed with collecting weapons and was not charged with selling any of them. In Brown the offender pleaded guilty to one count of possessing more than three unregistered firearms for which he was unlicensed. He was described as being a "warehouser" of the weapons which he intended to sell for profit. He had a prior criminal record but none of his offences related to firearms. He also had other matters of a subjective nature which needed to be taken into account. A sentence of 8 years with a non-parole period of 5 years was not disturbed on appeal. As I read that decision there is nothing in it which provides any particular comfort to the applicant. In Howard the offender pleaded guilty to two offences, one of which involved the sale of an unauthorised pistol and the other an agreement to sell such a weapon to an undercover police officer. An effective head sentence of 3 years 6 months imprisonment with a non-parole period of 2 years was not disturbed on appeal. That offender was said to be "deeply steeped in his love for firearms" and "had a strongly held view that the legal restrictions on firearm ownership were wrong in principle and, in part for that reason,…[he] was prepared to commit offences which were … out of character". Moreover, that offender was 63, had no prior convictions "and had a range of positive attributes including community service" to call upon. His circumstances could scarely be compared with those of the applicant. 30 That leaves for consideration the argument which is that the sentences, both individually and in their overall effect, are manifestly excessive. The applicant submitted that it was apparent that the starting-point for these sentences was an overall effective head sentence of 14 years imprisonment with a non-parole period of 8 years before the overall discount of 50% for the plea of guilty and assistance to the authorities was taken into account. In my view when regard is had to the following features of the case, it cannot be said that the sentences which were imposed upon the applicant, either individually or in their overall effect, were manifestly excessive. First, the seriousness with which the legislature regards the offences is apparent from the maximum penalties which the various offences attract. See generally R v Brown (supra) [at pars 20-22]. Secondly, the matters on the Form 1 document needed to be properly reflected in the sentence to be imposed in respect of count 1: Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No1 of 2002) (2002) 56 NSWLR 146. Thirdly, it was a matter of significant aggravation that the applicant was on parole at the time. Fourthly, the applicant's prior record as the sentencing judge observed, "did not entitle him to leniency particularly as two of his previous offences have involved firearms". Her Honour also observed that the applicant had "displayed a continuing disregard for the law" when he committed the offences. That being so, given the nature and extent of the applicant's prior offending, it was appropriate that more weight should be given to factors such as retribution, deterrence and community protection: Veen v The Queen (No2) (1988) 164 CLR 465 at 477-8. Furthermore, the sentencing judge extended to the applicant very considerable leniency on account of those factors which served to ameliorate the otherwise appropriate sentences. As I have observed, the sentencing judge extended to the applicant a combined discount of 50% for his plea of guilty and his assistance to the authorities. Notwithstanding the level of the assistance which was furnished to the authorities, the applicant can be regarded as somewhat fortunate to have received such a generous discount given that there was no evidence that he was to serve his sentence in protective custody: R v Sukkar (2006) 172 A Crim R 151. Furthermore, the sentencing judge found special circumstances "because of the partial accumulation of sentences". The manner in which the sentences were structured has produced a non-parole period which is only 57% of the overall sentence. What that means in practical terms is that the overall non-parole period is 15 months shorter than it would have been had the normal statutory proportion been applied. 31 I referred earlier to the fact that errors had been identified by the applicant in relation to count 3. Although it will be necessary to resentence the applicant in respect of count 3, it will have no impact upon the overall sentence because those errors did not, in my view, in any way infect the sentencing process. The sentencing judge was informed that the pistol to which count 3 related had in fact been supplied to the UCO. Her Honour was also told that because it was said to have been supplied for the purposes of a loan, the applicant was only charged with an offence of possession. It would be difficult in those circumstances to impugn the sentencing judge's conclusion concerning the objective gravity of the offence. Her Honour in any event imposed an effective non-parole period which was shorter than the standard non-parole period. 32 Although the sentencing judge also erred in concluding that the offence to which count 4 related had a standard non-parole period applicable to it, no submissions were directed as to what consequences (if any) that error may give rise. Presumably that was because it was acknowledged that the effective non-parole period which was imposed in respect of that count was also below what her Honour believed the standard non-parole period to be and also because, as counsel for the applicant explicitly recognised, a silencer is "quintessentially a feature of weapons used in violent crimes" Howard (supra) [at para 65]. 33 I propose the following orders:

3 Quash the sentence imposed in respect of count 3.

4 In substitution therefore sentence the applicant to a non-parole period of two years to commence on 26 June 2008 and to expire on 25 June 2010 with a total term of 3 years imprisonment to expire on 25 June 2011. I find special circumstances because of the accumulation of this sentence.

5 Confirm all the other sentences and confirm that the earliest date upon which the applicant is eligible for release on parole is 25 August 2011. **********

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