Kember v R

Court of Criminal Appeal (NSW)|2020-06-03|Before: Bellew J, Wilson J

Judgment

SIMPSON AJA: I agree with Bellew J.
BELLEW J:

INTRODUCTION

Shane Alan Kember (the applicant) pleaded guilty in the District Court of New South Wales to the following offences: 1. On 31 August 2016, at Kembla Grange in the State of New South Wales, knowingly took part in the supply of a pistol, namely a Ruger brand pistol, to a person not authorised to possess the pistol by licence or permit (Count 1). 2. On 31 August 2016, at Kembla Grange in the State of New South Wales, did possess a prohibited weapon, namely a silencer, without being authorised to do so by licence or permit (Count 2).

Count 1

The elements of the offending in Count 1 were admitted by the applicant's plea of guilty. [1] In addition, there were matters which were not in dispute, the majority of which arose from recorded telephone conversations to which the applicant was a party. His Honour summarised those conversations as follows: [2] [21] In July 2016 Kember gave Ayre the parts of a .38 calibre pistol (with some parts missing) for it to be re blued and restored. Re-blueing is a process by which the exterior metal parts are cleaned and a protective layer is added to them. [22] Kember told Ayre the .38 belonged to an associate, who he did not name. His associate wanted the .38 back and in working order on or prior to 3 September 2019. Ayre asked Lawrence to do the re-blueing. Lawrence took the .38 parts but did not have either the skill or equipment to do the job. [23] In August 2016 Lawrence met another man at his workshop near Newcastle. That man said he was interested in acquiring the .38 pistol frame and parts. This person said he would swap the .38 pistol for a .22 calibre semi‑automatic Ruger pistol. [24] On 28 August 2016 at 22:00, Ayre called Kember. They speak in code but it is obvious that they are discussing the 0.38 pistol. Ayre tells Kember about a guy who is interested in swapping it for a Ruger. Ayre says "Um, they're legit, as far as legit goes." Kember also asked if there were any of bigger calibre. Ayre indicates he can get Lawrence to come and show it to Kember. [25] On Wednesday 31 August 2016 at 6.31, Ayre called Kember to discuss the swap. Kember reiterates that his associate is going away Friday: "I've got today and tomorrow to work this out. I've got to get it fucking done. This bloke's done a lot of stuff for me, you know, and he never asks me for anything and the one thing I fucking try to do for him I can't fucking pull it off. Like, hello dickhead." [26] On Wednesday 31 August 2016 at 13.01, Ayre called Kember about the swap. Kember says, "Yeah, tell him not to worry about bringing the old one." I interpolate that to mean - the .38 pistol parts. He then says "Just bring the fucking other one." I interpolate that to mean the .22 Ruger. Ayre asked him if he is sure. Kember says, "Yeah." Arrangements are made for Kember to meet Lawrence near his home in Kembla Grange. [27] On Wednesday 31 August 2016 at 13.04, Ayre called Lawrence to tell him, "That deal's done." Lawrence says, "We'll bring it down, let him have a look." I accept this means the done 'deal' is to take the .22 Ruger in exchange for the .38 pistol. [28] On the evening of Wednesday 31 August 2016 Lawrence, in his car, met up with Kember in Dapto. Lawrence then followed him to his property at Kembla Grange. Lawrence had brought with him the .22 Ruger semi-automatic pistol for Kember's associate. [29] On 1 September 2016 at 07.36, Ayre rang Kember. He asked, "Did you see old mate yesterday?" Kember said, "Yeah." Ayre said, "Oh cool, so is he happy?" Kember said, "Yeah, it's all sorted.
His Honour subsequently concluded: [3] [38] The telephone intercepts provide a reliable and objectively verifiable background to what occurred and in what order. While my focus is on the conversations where Kember is directly involved and what he says to Ayre, I note that that [sic] those conversations correspond with what Ayre says to Lawrence. Of particular importance is Kember's insistence that only the Ruger be delivered to Kembla Grange, "Don't worry about the one, just bring the other fucking one" and his confirmation on 1 September that "it's all sorted."
Notwithstanding these matters, there remained a factual dispute as to the applicant's role in the offending in Count 1. Although that dispute was initially wide-ranging, it was ultimately reduced to three issues, namely: 1. whether the pistol was test fired at the applicant's property and, if so, whether the applicant was present when that occurred; 2. whether the applicant was present when the co-offender Lawrence and the prospective purchaser (referred to by the sentencing judge as "the third man") discussed the transaction, and what conclusion should be drawn as to the applicant's knowledge about the lawfulness or otherwise of the transaction; and 3. whether the pistol was delivered by Lawrence to the third man who left with it, or in other words, was the exchange complete? [4]
Lawrence gave evidence in the offender's sentence proceedings in relation to these issues. That evidence was summarised by the sentencing judge as follows: [5] [30] Lawrence gave evidence by video link from the gaol where he is serving his sentence. He told me he and Kember test fired the Ruger with some "sub-sonic" type 0.22 ammunition he had brought with him. The Ruger misfired. They then test fired it successfully with automatic .22 ammunition belonging to Kember. [31] A third man arrived. Lawrence described him as; "big, with very big hands, balding and aged in his sixties or seventies." He said Kember's associate fired the Ruger while Kember was present. Kember's associate took the Ruger away with him. No money was exchanged; rather in accordance with the deal arranged between Kember and Ayre there was a swap - the Ruger for Kember's associate's 0.38 pistol parts. [32] That the swap was intended and completed, is, the prosecution submit, the only rational interpretation of the phone conversations. And that deal had been done, is the only rational version of the conversation of 1 September at 7.36.
Darryl Austin (Austin), a friend and associate of the applicant, also gave evidence relevant to these issues which his Honour summarised as follows: [6] [33] Mr Austin gave evidence. He said he was a friend and associate of Kember's, who he had known for many years. He and Kember had once owned a racehorse together. Mr Austin is a large bald man in his sixties. His hands, while not huge were not small. Mr Austin is a person of good character. He was advised of his right not to incriminate himself and of the procedures provided for by s 128 Evidence Act. A certificate was granted to him for portions of his evidence. [34] Mr Austin told me that he had inherited an old pistol. He was aware that Kember had knowledge of firearms so he gave him the pistol in pieces and asked him to find someone to restore it. He told me he was planning an around Australia trip and the idea had come to him that, if he was properly licenced, he could visit gun clubs and ranges, as a way of meeting like‑minded people. He said he had asked for a gun licence application form but had not filled it in. [35] He said he asked Kember to keep an eye out for a pistol for him to take with him. He said he understood Kember knew a lot of licenced gun dealers. He said he was told by Kember that the friend of his could get him a pistol for $1,000. He said he was not told of any swap arrangement. Rather, he said he thought he was inspecting a pistol held by a licenced dealer. He said his intention, if he liked it, was to put down a deposit and pay the balance; only collecting the pistol when he got his gun licence. [36] He said he went to Kember's property in early September as Kember had told him a licenced gun dealer was coming down from up north and had a pistol for about $1,000. He said he drove to Kember's property look to [sic] at it. There he was introduced to a man he presumed was the licenced gun dealer. Kember, he said, left them to talk and went into his home to be with his family. Mr Austin did not recognise Lawrence when he saw him on screen in court on 27 May 2019. [37] He said when he was alone with the man he was shown a pistol. He asked about papers for it but he was told there were none. He told me that, doubting the man was a bona fide dealer, he left after first yelling a brief "good bye" to Kember. The man still had the pistol. The man with the Ruger did not stay but followed him directly out of Kember's property.
His Honour analysed the evidence of Lawrence and Austin as follows: [7] [39] Lawrence received a benefit for his promise to give evidence, his sentence was reduced. In his version of events, however, he did not seek to minimise or excuse his own actions or his own criminality. He was not obviously dissembling, nor did he appear to be parroting a line fed to him by others, as was suggested in cross-examination. His account ties in with the telephone calls. [40] Mr Austin's version of events does not tie in with any of the calls or the swap arranged between Lawrence and Kember, nor does it make logical sense. His version is that he gave a valued .38 pistol (in parts) to Kember for restoration but made no further inquiry about it, even to the day he gave evidence. Mr Austin says he asked Kember to source a legitimate pistol for him and that Kember told him he had done so and nominated a price of $1,000. That price does not accord with what is discussed in the calls. [41] He says he did not take the pistol brought to Kembla Range by Lawrence away with him and that he said he had no interest in the purchase. He said he went to Kember for advice about firearms but said that Kember left and was not there to advise him while he and Lawrence discussed the purchase of the Ruger. Mr Austin said neither he nor Lawrence spoke to Kember after the purchase arrangement fell through, despite Lawrence having driven down from Newcastle to deliver the Ruger. Again, this does not accord with Lawrence's version, the swap deal or the 1 September call. If Mr Austin was the third man at Kembla Grange that afternoon, he was not telling me the truth about what occurred.
Following that analysis, his Honour made the following findings in respect of the circumstances of the offending in Count 1: [8] [42] Based on the findings noted above in the telephone intercepts, Kember's calls in particular and, in particular, the evidence of Lawrence, I find beyond reasonable doubt: (1) In August 2016 Kember arranged with Ayre for a friend's .38 pistol parts to be re-blued. (2) Ayre could not get the job done in time. (3) Through Ayer's [sic] contact, Lawrence, an opportunity arose to swap the non-operational .38 for a working .22 Ruger. (4) Kember agreed to the swap on his friend's behalf. (5) Lawrence delivered the Ruger to Kembla Grange on 31 August 2016. (6) There it was tested [sic] fired in Kember's presence. I note Kember has a pistol range at his house: Mr Austin's statement, Exhibit 1 paragraph 11. (7) The Ruger was given to a third party. (8) Kember was present while this transaction occurred (9) That third party left the property with the Ruger.

Count 2

The facts in respect of Count 2 were agreed and were summarised by his Honour as follows: [9] [43] There are agreed facts in relation to count 2, the possess prohibited weapon matter. They relate to the execution of the search warrant and what was found. The police were shown a safe in the lounge room of Kember's home. Kember provided them a key to it. In that safe police found seven rifles, which are described in the facts. [44] The firearms were registered in the name of the offender's estranged partner. She was the holder of a New South Wales firearms licence. She did not use any of the firearms that were in the safe. She did not arrange to acquire any of those firearms; their purchase was arranged by the offender. They were registered in her name but she did not live at the premises, having moved out in May 2016. The offender, it is agreed, was not authorised to possess firearms, weapons or ammunition in the state of New South Wales. His firearms licence in New South Wales was revoked on 11 April 1996. [45] Police found ammunition at various locations at the property, including in a safe in the garage, on the top of the safe in the lounge room, a table in the house and a beanbag on the lounge room floor. [46] In a small shed towards the rear of the premises police located one homemade silencer which was painted in camouflage pattern. It is accepted that a silencer is a prohibited weapon.

Count 1

In determining the objective seriousness of the offending in Count 1, the sentencing judge observed that the supply of any firearm involves a significant breach of the Firearms Act 1996 (NSW), which makes it clear that the use, possession and sale of firearms is both strictly regulated, and a privilege which is conditional on the overriding need to ensure public safety. [10] His Honour found that the applicant's involvement had no legal justification and that it posed a significant risk to the safety of the community. [11] He expressly rejected the proposition that the applicant thought he was arranging the supply of a registered pistol from a licenced dealer. [12] His Honour was not satisfied that the pistol was ever in the applicant's personal possession. [13]
His Honour went on to say: [14] [50] The possession of that pistol at all times posed a significant risk to the safety of the community and Kember was dealing at all times with people who had possession of that item. I cannot find beyond a reasonable doubt it was ever in his personal possession, however. [51] If firearms are unlawfully obtained; their possession cannot be regulated, their safekeeping cannot be regulated, they are liable to be used and, if used, are liable to be a source of great danger or damage. Their supply in such circumstance creates a high risk to the safety of the public. Kember assisted and facilitated the transfer of this pistol. [52] An intermediary who arranges the unauthorised purchase or sale of firearms may not be substantially less culpable than the principal: R v Mohamad [2005] NSWCCA 204. Where an offender acts as an agent for others engaged this will have a variant on the determination of the objective seriousness of the offence. That said, involvement in any distribution as an intermediary while it might make the offender less culpable than the seller or purchaser, it does not mean that that culpability is markedly less. The relevant matters here include that: (1) The transaction involved on [sic] pistol, the pistol being an element of the offence. (2) The amount of time and effort put into the transaction by Kember. (3) That the expected reward was not financial. Given that his calls were recorded, I can accept on balance that he was intending to do a favour for a mate and that any that [sic] expected reward cannot be determined. (4) There was a lack of security inherent in the circumstances by which the firearm was traded. (5) Kember was not directly in possession of the pistol and it was only at his premises for a short time. The actual transaction was between Lawrence, Ayre's agent, and the third man, presumably, for the moment, Austin, whose agent was Mr Kember. … [54] Ultimately I look to what I find Kember did. He chose to involve himself in a transaction. He was central to the transfer from one unlawful possession via the agency of Lawrence to another unlawful possessor, a third man who left Kembla Grange with the pistol. The suggestion about the possession of the Ruger came from Lawrence via Ayre and Lawrence had the pistol in his possession for longer than, I suspect, any of the others. The offender's role was integral to the transaction. [55] Because different fact findings were made by different judges who sentenced Ayre and Lawrence, I did not have any regard to the labels associated therein except for parity purposes. What the offender did was a serious breach of the Firearms Act. In the scale of such matters it is [sic] still, as Judge Ellis found in relation to Ayre, falls at the bottom of the range of objective seriousness for offences of this type.
His Honour specifically addressed the matters contained in the Form 1: [15] [62] The guns were owned and registered in the name of the offender's partner. She was licenced. The guns were registered to the address at Kembla Grange. They were legally stored, although, some of the ammunition was not. The offender had access to them. He does not accept the prosecution suggestion that he had arranged their purchase. [63] Whether or not their possession by his wife involved a total shame [sic] cannot be found beyond a reasonable doubt but it is uncontroversial that guns and hunting were the offender's hobby. He had access to the guns that were registered and stored at the address. [64] This is more than a technical breach. All the circumstances allowed him to have access to and possess at his will firearms which he was not licenced to possess.
His Honour also noted that matters on a Form 1 generally operate to increase the sentence that would otherwise be appropriate. [16]

Count 2

His Honour found the objective seriousness of the offending in Count 2 to be as follows: [17] [47] The silencer was not secured. Of itself it is not a dangerous item but it has potential to be dangerous. It was not a toy. It was made to be used. There is no suggestion that it was made to be used for anything other than as a tool in the hunting of wild animals. [48] Had this matter been the only matter charged, I accept it would, in all likelihood, have been dealt with in the Local Court and, in all likelihood, a full-time custodial sentence would not have been imposed. But I note that it was sent to this Court and that it carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years.

THE APPLICANT'S SUBJECTIVE CASE

At the date of sentence, the applicant was 48 years of age and lived on a semi-rural property with his mother. He had previously worked in a variety of occupations but had since started his own building business. [18] A report of Ross Backen, Clinical Psychologist, dated 12 February 2020 was before the sentencing judge. Mr Backen had been treating the applicant since 20 February 2017, when the applicant had presented with a long-term pattern of anxiety, low mood, and vulnerabilities and difficulties arising from his previous career as a police officer. Between 20 February 2017 and 12 February 2020 the applicant underwent 24 counselling sessions with Mr Backen. [19]
Although Mr Backen reported that the applicant continued to struggle with ongoing mood and anxiety difficulties, he said that over the past 12 months the applicant had undergone only two sessions of counselling as he had been progressing very well, and was coping with managing his ongoing symptoms. [20] Mr Backen expressed the view that the applicant would experience significantly reduced levels of stress following the completion of the Court proceedings, and would have a consequent ability to manage his anxiety and mood. [21] His Honour made specific reference to these aspects of the report of Mr Backen when sentencing the applicant, and appears to have generally accepted them. [22]
His Honour noted that the applicant had a criminal record, which denied him the leniency given to first offenders. [23] However, he observed that a previous firearms offence had been committed a long time ago, and that the applicant had not offended since 2004, and even then only in respect of minor offences.
His Honour specifically referred to the fact that the proceedings brought against the applicant had been protracted, and accepted that the real possibility of a custodial sentence had impacted on the applicant's mental health. He accepted that the applicant's anxiety and depression would increase if a full-time custodial sentence was imposed because his recovery would be delayed as a consequence. [24] His Honour allowed a discount of 10% to reflect the utilitarian value of the applicant's plea of guilty. [25]
The written submissions of senior counsel for the applicant did not challenge any of the findings of the sentencing judge, [26] be they as to the objective seriousness of the offending, or the applicant's subjective case.

Ground 1 - His Honour erred in failing to properly consider an Intensive Correction Order as an alternative to full-time custody.

THE REASONS OF THE SENTENCING JUDGE

In considering a submission advanced on behalf of the applicant that an Intensive Correction Order (ICO) should be imposed in lieu of a full-time custodial sentence, and having made a number of references to the importance of community safety in the context of assessing the objective seriousness of the offending, [27] his Honour said the following: [28] [87] The real issue is the length of the sentence. I am prepared to indicate, as I did at the beginning, that questions of parity and objective seriousness mean that a sentence of less than three years could be imposed. An Intensive Correction Order is not prevented by the operation of s 67 of Crimes (Sentencing Procedure) Act 1999. That section focuses on the elements of the offence and there is no element of an offence before me that relates to the discharge of a firearm. [88] I must consider community safety. That obligation does not derogate from the general purposes of sentencing outlined in s 3A of the Sentencing Act or other relevant matters. It is not limited to the risk of re-offending. It can operate differently in different circumstances. It is a broad concept. Community safety, as Harrison J pointed out in Pullen v R [2018] NSWCCA 26, is not achieved simply by locking someone up. Many studies have shown that in such cases incarceration can have the opposite effect. [89] I have given close consideration to Mr Glissan's submission. It is accepted that serving a sentence subject to an Intensive Correction Order, while it does involve a degree of leniency, still involves substantial punishment. It is not a light sentence. An Intensive Correction Order is intended to be burdensome and onerous. An Intensive Correction Order can be accompanied by conditions, such as community service which allow a person to give something back to the community. It is particularly appropriate where recognition is given for persons [sic] non-obligated community service as demonstrated by the references here.
Having made those observations, his Honour then said: [29] [90] I return, without repeating the objective seriousness of the offence and my findings in relation to it, to the factual dispute. It has been resolved primarily in favour of the version advanced by the Crown. The offender chose to involve himself knowingly in the supply of a Ruger pistol. He was an active participant in that supply and he was present and facilitated the supply at his premises. [91] The purposes of sentencing so far as Firearms Act matters have been summarised and repeated in many cases. Superior courts have highlighted time and time again that it is necessary to repeat and keep repeating how serious the community views such matters and to reinforce what is said by the imposition of custodial sentences. Substantial weight needs to be given to both general and personal deterrence. [92] I am satisfied that the long delay in resolving these matters and having had it hanging over him the matter for sentence has had a personal deterrent effect but Kember chose to act in complete defiance of his legal obligations, which he, as a firearm enthusiast must have known well. [93] The community has determined that trade in firearms must be strictly regulated. Any breach of the law is regarded as a very serious offence that must be reflected in the sentences imposed: Howard v R [2004] NSWCCA 348, at [66]. A Court, by the severity of the sentences imposed, has to give proper weight to the guidance to which I have earlier referred. [94] Mitigating factors will and should be taken into account but they can only go so far. Here there is a strong and powerful case for a finding, and a significant one, of special circumstances. Here there is a case for a total sentence of less than three years but I cannot do justice to how objectively serious this offence was by imposing a sentence other than a full‑time custodial sentence.

Submissions of the applicant

Senior counsel for the applicant submitted that when considering the imposition of an ICO, it was necessary for the sentencing judge to follow the three step process required by the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Senior counsel took no issue that the first two steps in that process had been properly addressed in the present case by the sentencing judge determining: 1. that the threshold imposed by s 5 of the Sentencing Act had been crossed (there having been no submission made to the contrary); and 2. the length of the aggregate sentence (such determination not having been challenged).
However, senior counsel submitted that the sentencing judge had failed to take the final step in the process, and consider how any sentence should be served. It was submitted, in particular, that his Honour had failed to provide clear reasons for declining to impose an ICO, to the point where there was a "paucity of reasoning" in that respect.
Senior counsel further submitted that to the extent that sentencing judge had considered the imposition of an ICO, he had erred by "overvaluing" the question of community safety. As I understood it, senior counsel submitted that the sentencing judge had done so essentially to the exclusion of other relevant considerations.

Submissions of the Crown

The Crown took no issue with the fact that the correct approach to be taken by the sentencing judge involved the three step process outlined by senior counsel for the applicant. However, the Crown submitted that it was evident from the reasons of the sentencing judge that his Honour had: 1. followed that process; 2. applied all of the relevant principles set out in the Sentencing Act; 3. taken into account all relevant matters by way of instinctive synthesis; and 4. determined, in light of all of those factors, that an ICO should not be imposed.
The Crown pointed, in particular, to the emphasis which had been given by the sentencing judge to the objective seriousness of the applicant's offending, as well as the substantial weight which was required to be given to both general and specific deterrence in sentencing the applicant. It was submitted that his Honour's reasons left no doubt as to why he had declined to impose an ICO.

CONSIDERATION

There are a number of provisions of the Sentencing Act which bear upon this ground of appeal.
To begin with, s 3A is in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Section 5(1) is in the following terms: Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
Part 5, [30] which governs the imposition of an ICO, includes s 66 which is in the following terms: Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
There is no doubt that when considering the imposition of an ICO, a sentencing judge must follow a three step process. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The second step is to determine the length of the sentence. The third and critical step is to determine whether the sentence should be served by way of an ICO. [31]
In taking the third step, and although s 66 mandates (inter alia) that community safety is the paramount consideration, a sentencing judge must weigh and assess that consideration against the entirety of the facts, matters and circumstances which are relevant to the sentencing task, applying the instinctive synthesis approach. [32] In my view, in sentencing the present applicant, the sentencing judge did precisely that in those passages of his judgment set out above. [33] Having expressly considered community safety and the risk of reoffending, [34] his Honour proceeded to take into account a range of factors, including: 1. the applicant's role in the offending; 2. the purposes of sentencing for offending of this nature; 3. the emphasis which has been placed by superior courts on the seriousness with which the community views offending of this kind, and the weight which is required to be given to both general and specific deterrence; 4. the fact that the delay in the proceedings had already had a personal deterrent effect on the applicant; 5. the fact that the applicant chose to act in complete defiance of his legal obligations in circumstances where those obligations were known to him; 6. the fact that trade in firearms must be strictly regulated, and that any breach of the law is regarded as a very serious offence; and 7. the role of mitigating factors to be taken into account.
It is evident from the structure of his Honour's reasons that his consideration of all relevant factors led him to conclude that he could not do justice to the objective seriousness of the offence by imposing anything other than a full-time custodial sentence. The balanced approach taken by his Honour is evident from those passages of his reasons to which I have referred, and tends wholly against the proposition that he "overvalued" the issue of community safety.
It is equally evident, in my view, that in addressing those matters, there was no failure on the part of the sentencing judge to complete the final step in the process and consider how the sentence of imprisonment should be served. Contrary to the submission advanced on behalf of the applicant, the reasons that his Honour reached the conclusion that he did are abundantly clear from the passages to which I have referred.
In written submissions, senior counsel for the applicant relied upon the decisions of this Court in Brown v R; Reid v R [35] and Campbell v R [36] as support for the proposition that the sentencing judge had failed to properly consider how the sentences of imprisonment should be served. [37] In my view, neither authority supports the applicant's position in respect of this ground.
In Brown, James J (with whom the other members of the Court agreed) confirmed the necessity for a sentencing judge to give proper consideration to whether, in the exercise of discretion, a sentence which was deemed appropriate should be suspended. [38] There is no doubt that the same general principle applies when considering the imposition of an ICO. The Court ultimately concluded that the sentencing judge in that case had not given proper consideration to that question. However, the circumstances in Brown are wholly distinguishable from the present case. In particular, the reasons given by the sentencing judge in that case were somewhat perfunctory, [39] particularly when compared with the reasons given by his Honour when sentencing the present applicant.
In Campbell Hamill J (with whom the other members of the Court agreed) observed that compliance with s 5 of the Sentencing Act was a mandatory requirement and that where alternatives are available, the preferable course is to make it clear that such alternatives have been considered, and to explain why they are not appropriate. [40] That observation provides no support to the applicant in the present case, for the simple reason that the sentencing judge did precisely what Hamill J had outlined. In my view, the care and detail with which his Honour addressed these issues is at odds with the proposition that there was a paucity of reasons, or that his Honour's reasons were otherwise unclear.
It follows that this ground is not made out.

Ground 2 - In sentencing the applicant, his Honour failed to apply the principles of parity in sentencing.

The co-offender Ayre

Ayre appeared before his Honour Judge McLennan SC in the District Court having pleaded guilty to the following offences: 1. conspiracy to manufacture a prohibited drug in an amount not less than the indictable quantity; 2. supplying a prohibited drug, namely amphetamines; 3. supplying a prohibited drug, namely cannabis leaf; and 4. knowingly take part in the supply of a pistol to a person not authorised to possess it.
It was the offending in (iv) which stemmed from the same facts as those referable to Count 1 against the applicant.
His Honour gave the following indicative sentences: [41] (i) - 2 years' imprisonment; (ii) - 2 years and 6 months' imprisonment; (iii) - 18 months' imprisonment; and (iv) - 2 years' imprisonment.
His Honour imposed a total aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years' imprisonment.
In sentencing Ayre, his Honour found the objective seriousness of his offending in (iv) to be as follows: [42] … it involves the offender acting as the go-between for the provision of a Ruger pistol to Shane Kember from Stephen Lawrence. It seems that no commission was paid to the offender for his role and I regard this as a low-range offence.
In addressing Ayre's subjective case, [43] his Honour noted that he was 46 years of age and was entitled to a discount of 25% on account of the utilitarian value of his early plea. His Honour also noted that Ayre had a criminal history extending from 1989 to 2016 involving offences for dishonesty, drugs and firearms as well as stalking and intimidating. [44]
In reference to a report of Sarah Brann, Forensic Psychologist, [45] his Honour noted that Ayre had been a heavy user of amphetamines for the majority of his life, to the point where he had become dependent upon that drug over time. Ayre had expressed to Ms Brann that he was willing to take part in drug and alcohol rehabilitation, Ms Brann noting that his attitude appeared to be generally motivated towards participation in treatment. His Honour generally accepted the report and opinions of Ms Brann and in doing so, accepted that Ayre had prospects of rehabilitation, although he concluded that to describe such prospects as good might be "somewhat debatable". [46] His Honour concluded that he could not be persuaded that it was more likely than not that Ayre would not reoffend in light of his criminal history as well as these offences, but took the view that a finding of special circumstances was justified.

The co-offender Lawrence

Lawrence appeared before his Honour Judge Ellis in the District Court having pleaded guilty to the following offences, namely: 1. supply a prohibited drug; 2. supply an unregistered firearm, namely a Ruger pistol; 3. supply of about 1.385kg of cannabis; 4. possess a precursor for the manufacture of an illicit substance; and 5. possess more than three unregistered firearms.
It was the offending in (ii) which stemmed from the same facts as those referable to Count 1 against the applicant. Lawrence also asked the sentencing judge to take into account an offence of possessing an unauthorised pistol on a Form 1 (that being the same Ruger pistol which was the subject of the offending in Count 1 against the applicant).
His Honour gave the following indicative sentences: [47] (i) - 1 year and 9 months' imprisonment; (ii) - 1 and 9 months' imprisonment; (iii) - 1 year and 2 months' imprisonment; (iv) - 1 year and 2 months' imprisonment; and (v) - 3 years and 7 months' imprisonment.
His Honour then imposed a total aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years' imprisonment.
In assessing the objective seriousness of the offending in (ii), the sentencing judge said: [48] In relation to the supply of the unregistered firearm, that related to his essentially being provided with an antique firearm to restore for a particular individual but which he was unable to restore. Then after obtaining permission from the co-offender Ayre he swapped that for a Ruger pistol. Neither of the two firearms actually belonged to the offender but the offender then delivered, or supplied to a Mr Kembler [sic], at the direction of Ayre, the Ruger pistol. It was a prohibited weapon. He received no money for his role in that count. He was, as it were, a delivery boy. Again that matter is below the mid-range.
His Honour also found that Lawrence's involvement in supplying the Ruger pistol "was at the behest of the co-offenders". [49]
His Honour applied a combined discount of 40%, 25% of which was attributable to Lawrence's plea of guilty, and the remaining 15% attributable to his past and future assistance.
In terms of Lawrence's subjective case, his Honour noted that the offender had undertaken a number of different courses since being in custody, and had been the subject of a favourable reference from a Catholic chaplain at the Correctional Centre in which he was housed. [50] He also noted that the applicant had been working in various roles in custody, including within the maintenance section and in the capacity of a sweeper.
In reference to a psychological report of Dr Rebecca Smith which was before him, his Honour found that the applicant was a non-assertive individual who had been assessed as suffering from a moderate level of depression, a severe level of anxiety, and a moderate level of stress. [51] His Honour also made reference to Lawrence having a "relatively meek personality" which caused him difficulties dealing with his psychological issues and that his cognitive function, although not assessed, had been estimated to fall within the low-average range. [52] This was a result of poor education, Lawrence describing himself as almost illiterate.
His Honour noted that a risk summary had concluded that Lawrence had a low to moderate risk of re-offending, and that he would benefit from ongoing counselling to assist in his emotional and stress management, as well as his self-esteem and confidence building. [53] In all of these circumstances, his Honour made a finding of special circumstances. [54]

THE REASONS OF THE SENTENCING JUDGE

His Honour initially addressed the issue of parity in the following terms: [55] [53] I will address questions of parity later but there are submissions as to relativity between roles made by both parties. It is also important to note that in assessing the seriousness of Lawrence's crime and Ayre's offending it is clear that the seriousness of their offending was exacerbated by their firearms offences being associated with their drug offences. [54] Ultimately I look to what I find Kember did. He chose to involve himself in a transaction. He was central to the transfer from one unlawful possession via the agency of Lawrence to another unlawful possessor, a third man who left Kembla Grange with the pistol. The suggestion about the possession of the Ruger came from Lawrence via Ayre and Lawrence had the pistol in his possession for longer than, I suspect, any of the others. The offender's role was integral to the transaction. [55] Because different fact findings were made by different judges who sentenced Ayre and Lawrence, I did not have any regard to the labels associated therein except for parity purposes. What the offender did was a serious breach of the Firearms Act. In the scale of such matters it is [sic] still, as Judge Ellis found in relation to Ayre, falls at the bottom of the range of objective seriousness for offences of this type. [56] That said, content has to be given to the non-parole period here which is ten years but all of the material, including the plea of guilty and the subjective case, require that this sentence involves a significant departure from the guidance offered by the standard non-parole period and it is recognised that in some cases, as Mr Glissan properly submits, caught [sic] in the exercise of its independent discretion, can impose a sentence that does not involve a non‑parole period.
His Honour then returned to the issue: [56] [73] This sentence must be determined by having regard to the circumstances of both co-offenders and their respective degrees of culpability. Like must be compared with like. However, different personal and criminal histories may justify a real difference in the time each will serve. This principle is known as "parity" and is a classic example of the need, so far as possible, to ensure equal justice.
Having noted aspects of the sentencing remarks in relation to Ayre and Lawrence, his Honour went on to say: [57] [75] The factual circumstances outlined in each of the judgments were, in short form, similar to that advanced by the Crown against Kember in these proceedings. The judgments were, however, not put before me to assist in the determination of the facts in this sentence but to provide a point of comparison for sentencing parity purposes. [76] Judge McLennan found that while Ayre's crime was in the low range a custodial sentence was required to deter others from frustrating the scheme of the Firearms Act. For a s 51(1A)(c) firearms offence involving the Ruger pistol he indicated a sentence of two years. [77] When dealing with Lawrence for his role in the supply of the Ruger pistol, Judge Ellis started with a three year sentence before discounts of 40%. Lawrence was charged with a s 33(1) firearms offence; which had a maximum of 14 years and no standard non-parole period. [78] The sentences indicated by Judge McLennan and Judge Ellis were another guide to the exercise of my sentencing discretion. No co-offender should be left with a justifiable sense of grievance from disproportionate sentences being imposed on others unless there is a discernible reason for that difference. One aspect raised in discussion with the parties was that in both other co-offenders' cases the issue of whether an Intensive Correction Order could be an option was not raised, because it was not an option given the other sentences that were imposed upon them. [79] While an Intensive Correction Order is the more lenient option, the focus at this step, so far as comparison is concerned, must be on the length of the sentence, taking the starting points discernible from their Honours' judgments because here the reductions for plea or other assistance vary.

Submissions of the applicant

Counsel for the applicant submitted that the fact that the three co-offenders were sentenced by three different judges had acted to the applicant's detriment, and that in circumstances where it was desirable that all co-offenders be sentenced by one judge, there was a lack of transparency which had led to an error in the present case.
Senior counsel further submitted that on a proper reading of the sentencing judgments in each case, all three offenders should be taken to have been assessed as having the same degree of criminality. Accepting this to be the case, it was submitted that a comparison of all relevant factors left the applicant with a justifiable sense of grievance.

Submissions of the Crown

The Crown submitted that in order to succeed on this ground, it was incumbent upon the applicant to demonstrate a justifiable sense of grievance, which was, in turn, to be assessed by reference to objective criteria.
The Crown helpfully provided a table annexed to the written submissions which set out, in summary form, a comparison of various matters as between the three offenders. No issue was taken with the contents of that table which was in the following terms: FEATURE APPLICANT AYRE LAWRENCE Age 48 years 46 years 53 years (at sentence) Count 1: Conspiring to manufacture a prohibited drug (Form 1: Proceeds of crime); Count 1: 1 x Supply of a prohibited drug, namely 28 grams of amphetamine; Count 1: Knowingly take part in the supply of a pistol to a person not authorised to possess it (s 51(1A)(a) Firearms Act)(Form 1: 7 x possess unauthorised firearm; 1 x possess ammunition) Count 2: Supply a prohibited drug namely amphetamines; Count 2: 1 x Supply of an unregistered firearm which was a Ruger pistol (s 36(1) Firearms Act - 14 year max imp, no SNPP) (Form 1: Possess pistol) Charges Count 2: 1 x Possess prohibited weapon (silencer) Count 3: Supply cannabis leaf; Count 3: 1 x Supply of 1.385 kilograms of cannabis (deemed); Count 4: Knowingly Count 4: 1 x Possess a precursor for the manufacture of an illicit substance. take part in the supply of a pistol to a person not authorised to possess it (s 51(1A)(a) Firearms Act Count 5: 1 x Possess > 3 unregistered firearms, including a pistol or prohibited firearm 2y 9m NPP 1y 5m 5y NPP 3y Sentence Supply pistol - 2y 8m; NPP 1yr 4m (indicated - after 10% discount) aggregate 5y NPP 3y Possess pistol - 11 months Supply pistol - 2y (indicated - after 25% discount) Supply unregistered pistol: 1y 9m (prior to discount - 3 years) Possess - N/A Criminal History From 1994 to 2005 including personal violence offences. No time in full-time custody. From 1989 to 2016 involving dishonesty, drug offences and a firearm offence. In 2005, he was None sentenced to 12 months' imprisonment with a non-parole period of five months for stalking and intimidating. Liberty at time Neither on parole or bail at time. Neither on parole Neither on parole or bail at time. or bail at time. Discount 10% late plea 25% plea 40% (25% plea and 15% assistance) (starting point on count 1 3 years) (starting point on count 4: 2 years 8 months) (Starting point on count 2: 3 years) Role Central to the transfer, integral to the transaction. Non financial reward Go-between to Kember and Lawrence; no commission paid to the offender for his role Delivery of weapon at direction of Ayre - "a delivery boy''; no money received Psychiatric Profile Anxiety, depression, PTSD Drug addiction which remained untreated. Moderate levels or depression and stress and severe levels of anxiety Finding of Special Circumstances Yes - age and mental health Yes-drug and alcohol rehabilitation, Yes - first time in custody, age and mental health Prospects of Rehabilitation Some prospects Some prospects Not referred to Reoffending Not referred to uncertain Moderate to low risk

The Crown submitted that the sentencing judge had considered the charges for which all offenders were sentenced and had noted that the respective discounts applied to each sentence for early guilty pleas, as well as in the case of the co-offender Lawrence, on account of assistance. It was submitted that the considerations of the sentencing judge in relation to the roles and seriousness of the respective offending, and his ultimate finding that an ICO was not appropriate, could not raise any justifiable sense of grievance.

Consideration

In WM v R [58] I summarised the parity principle in the following terms: [59] [60] Equal justice requires, so far as the law permits, that like cases be treated alike. It also requires the differential treatment of persons according to differences between them. Consistency in the punishment of offences against criminal law is a reflection of the notion of equal justice and finds its expression in the parity principle, which requires that like offenders should be treated in a like manner. The parity principle also allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability, and/or different circumstances. [61] The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. It is not simply a question of the imposition of different sentences for the same offence, but a question of due proportion being structured between those sentences. That is a matter which is to be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality.
It is also important to bear in mind that the relevant grievance is not one that is in the mind of the offender. It arises where there is appearance of injustice in the mind of a hypothetical bystander. [60]
Although it is desirable that co-offenders be sentenced by the one sentencing judge, that course was not followed in the present case. Why that is so is not apparent. However, this ground must obviously be determined according to what was done, rather than what may have been desirable. I am unable to accept the submission advanced on behalf of the applicant that there was a lack of transparency in the reasons of the sentencing judge as to parity which has led to the applicant having a justifiable sense of grievance. His Honour specifically addressed considerations of parity in those parts of his reasons which I have previously set out. [61] No complaint has been made regarding his Honour's articulation of the relevant principles.
Further, I am not persuaded that there was any error in the manner in which those principles were applied by the sentencing judge. In considering the issue of parity, his Honour appropriately had regard to what the applicant had actually done in the course of his offending. In doing so, he found (inter alia) that the applicant's role was integral to the transaction. [62] That role was greater than that of either Ayre (described by Judge McLennan SC as a "go-between") or Lawrence (described by Judge Ellis as a "delivery boy"). Whilst the use of labels to describe the role played by an offender in a criminal enterprise has been eschewed, it is clear that his Honour had the benefit of the sentencing remarks of both of the co-offenders and was fully appraised of the entirety of the findings which had been made. [63] His Honour's findings as to the applicant's role, and the findings made as to the respective roles of the co-offenders, tend completely against a conclusion that all three offenders were found to have had equal degrees of criminality.
Another important distinction between the case of the applicant and those of the two co-offenders was the respective discounts applied on sentence. The utilitarian value of the applicant's late plea of guilty attracted a discount of 10%. Ayre received the benefit of a 25% discount for his early plea of guilty, whilst Lawrence had the benefit of a total discount of 40%, taking into account his early plea of guilty and the fact of his assistance to the authorities, part of which was constituted by giving evidence in the sentence proceedings against the applicant.
It is also important to bear in mind that the applicant asked the sentencing judge to take into account eight additional matters on a Form 1. Seven of those eight matters involved the possession of firearms without authorisation. There was no Form 1 in Ayre's case, and Lawrence asked the Court to take into account one additional matter, namely possessing an unauthorised pistol. The fact that matters on a Form 1 are taken into account means that greater weight is to be given to personal deterrence and retribution. The purpose of the process is to impose a longer sentence than if the primary offence(s) had stood alone, and any additional penalty will not necessarily be small. [64] The approach taken by the sentencing judge was in accordance with these principles. [65]
This Court has previously observed that "considerable obstacles" are placed before an applicant who contends error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences. [66] The sentencing judge in the present case was so aware, and his reasons explain why he reached the conclusions that he did. In the circumstances I am not persuaded that the applicant has any justifiable sense of grievance arising from sentences imposed upon the co-offenders.
It follows that this ground is not made out.

GROUND 3 - In the premises the sentence imposed was too severe.

Given that senior counsel for the applicant accepted that ground 3 depended upon the Court upholding one or other of grounds 1 and 2, and in view of the conclusions that I have reached, it is not necessary to consider ground 3.

ORDERS

I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
WILSON J: I agree with the orders proposed by Bellew J for the reasons his Honour has given.

Endnotes

ROS at [6].
ROS [21] - [29].
ROS [38].
ROS at [7].
ROS [30] - [32].
ROS [33] - [37].
ROS [39] - [41].
ROS [42].
ROS [43] - [46].
ROS [49].
ROS [49]
ROS [49].
ROS [50].
ROS [50] - [55].
ROS [62] - [64].
ROS [65].
ROS [47] - [48].
ROS [69].
Report of Mr Backen of 12 February 2020 at [2].
Report at [3]-[4].
Report at [6].
ROS [71].
ROS [67].
ROS [72].
ROS [86].
At [2].
ROS [49]-[51]
ROS [87] - [89].
ROS [90]-[94].
Sections 64 - 73B.
R v Fangaloka [2019] NSWCCA 173 at [44]-[45] per Basten JA, Johnson and Price JJ agreeing.
Blanch v R [2019] NSWCCA 304 at [51] per Campbell J, Hoeben CJ at CL and Price J agreeing.
At [28]-[29].
ROS [49]-[51]; [88].
[2006] NSWCCA 144.
[2018] NSWCCA 87.
At [6].
At [51].
At [34].
At [53].
ROS 21.
ROS 15.
ROS 15.
ROS 16.
ROS 16.
ROS 17.
ROS 8.
ROS 3.
ROS 4.
ROS 4.
ROS 5.
ROS 5.
ROS 5.
ROS 6.
ROS [53] - [56].
ROS [73].
Commencing at ROS [75].
[2020] NSWCCA 96.
By reference to the decisions in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 and Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at [60] - [61] per Mason J (as his Honour then was).
Chamon v R [2020] NSWCCA 112 at [52] per R A Hulme J, Wilson J agreeing, citing Lowe at 610 (per Gibbs CJ); 612 (per Mason J); 623 (per Dawson J).
At [64]-[66] above.
ROS [54].
ROS [74]-[77].
Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [18] per Spigelman CJ.
ROS [65].
Tatana v R [2006] NSWCCA 398 at [28]. 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: 10 July 2020

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