Le v R

Ground 2 - error in assessment of objective seriousness of the Seq 2 and Seq 24 offences

1. This proposed ground concerns the judge's assessment of the two Glock pistol possession offences in the following passage of his sentencing remarks. It appears in the context of his Honour providing reasons for his assessment of the objective seriousness of each of the offences. [6] "Both firearms were defaced, however, the offender has admitted his guilt in respect to the specific offences which have been placed on Form 1 schedules and I am mindful that the Court must avoid double counting - although, I would accept the offence of defacing the firearm is an important aspect of the assessment of objective seriousness. I would increase the sentence when considering the Form 1 offence individually. The firearms are possessed in the context of the possession of prohibited drugs for supply. The Crown has accepted that there is no evidence the offender defaced the relevant firearm."
2. The applicant had asked the judge to take into account when sentencing for each of the offences involving possession of the Glock pistols his guilt in respect of two offences concerned with their defacement (Seq 22 and Seq 26). He contended that this did not permit the judge when assessing the objective seriousness of the offences of possessing the pistols to take into account that he had admitted guilt of possessing them in a defaced state, contrary to s 66(1)(b) of the Firearms Act (1996) NSW, or that he was complicit in the act of defacing them, an offence contrary to s 66(1)(a) of that Act.
3. The applicant made alternative submissions. First, if his Honour's reference to the "offence of defacing the firearm" was to the offence of possessing a defaced firearm, then despite saying he was mindful to avoid double counting, he must have taken into account the admission of guilt of possessing defaced firearms when assessing the objective seriousness of the pistol possession offences. Counsel qualified this submission by saying the suggested error was "unlikely".
4. In the alternative, it was submitted that it is "most likely" that despite "noting the Crown concession that there was no evidence that the applicant defaced the two firearms, if his Honour took into account the fact that separate offences may have been committed on a different occasion involving the physical act of defacing the firearms … that was an irrelevant consideration for the purposes of determining the objective seriousness of the respective index offences".
5. I am not satisfied that either the "unlikely" or the "most likely" errors are established.
6. The fact that offences listed on a Form 1 document play no part in the assessment of the objective seriousness of the primary offence was discussed and explained by Johnson J in Nguyen v R [2019] NSWCCA 209 at [58]-[64], including reference to the judgment of Beech-Jones J (as his Honour then was) in RO v R [2019] NSWCCA 183 at [53]-[60]. The correct use of offences listed on a Form 1 is that they may result in an increase in the sentence for the primary offence because it is necessary to reflect the "additional need for personal deterrence and retribution": Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23]; 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 [42].
7. The sentencing judge was clearly mindful of the need to avoid double counting given he expressly said so. He also expressly mentioned the Crown concession that there was no evidence the applicant defaced the firearms. He cannot be taken literally to have meant that he was taking into account in the assessment of the objective seriousness of the pistol possession offences that the applicant defaced them at the same time as saying that the Crown had conceded that there was no evidence the applicant did so. I can only construe what his Honour said as being an acknowledgment of the need to avoid falling into the type of error for which the applicant now contends.
8. As the Crown submits, it appears that his Honour avoided error in the assessment of objective seriousness of the pistol possession offences by putting aside they were defaced because it was necessary that that aspect be part of the process of taking the Form 1 offences into account. That is, he confined himself to taking into account the defaced state of the pistols in his assessment of the degree to which the offences taken into account should result in an increase in the sentence for the primary offence in accordance with the relevant authorities (see above at [36]). [7]
9. There is a degree of infelicity of expression in the reasons (and perhaps punctuation in the transcript [8] ). For example, his Honour's reference to "the offence of defacing the firearm" was clearly a shorthand reference to the offences on the Form 1 documents, namely "possessing a defaced firearm". It cannot be the case that his Honour was referring to the act of defacement given the Crown's concession that it was unknown who was responsible or when that occurred. Further, the statement, "I would accept the offence of defacing the firearm is an important aspect of the assessment of objective seriousness" was not an expression of what his Honour did. It was an acknowledgement of a submission made by the Crown that this was the first of two alternative ways his Honour could take the "defaced firearm offences into account". I am satisfied that he opted for the alternative (and correct) approach.
10. Accordingly, rather than taking into account uncharged guilt of offences of defacing firearms, or taking into account as part of the objective seriousness of the pistol possession offences that they were defaced, I am satisfied that the judge's approach was clearly indicated by him saying, "I would increase the sentence when considering the Form 1 offence individually".
11. Infelicities of expression sometimes occur in sentencing remarks. They are not drafted with the precision of a parliamentary drafter. Counsel for the applicant made the point at the hearing that this was not a judgment delivered immediately upon the conclusion of the sentence hearing in which case some allowance for infelicities sometimes made. However, with their notoriously heavy workload, judges of the District Court sometimes do not have the time, let alone the resources, to have even their reserved judgments drafted, proofread, and scrutinised minutely for error before delivery.
12. I am not persuaded that either of the errors for which the applicant contended in fact occurred.
13. In conclusion I make the following observation. The judge recited a number of factors relevant to the objective seriousness of the offences before announcing that the possession of the Glock Model 17 was "at the midrange for offences of this type" and because the Glock Model 26 "involved possession of a pistol with short dimensions, making it a prohibited weapon due to its capacity for concealment" it was "slightly above the midrange". These findings were an appropriate assessment of the gravity of offences involving the possession of two handguns together with suitable ammunition and in the context of drug supply activity. The applicant did not challenge these assessments or seek any different finding in the event the Court was persuaded to consider resentencing.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

Endnotes

1. Remarks on sentence (ROS) p11
2. ROS p12
3. Two other cases were also cited, namely Martin v R [2012] NSWCCA 253 at [44] and R v Suaalii [2005] NSWCCA 206 at [25], but they simply acknowledge what was said in R v Tobar; R v Jan.
4. By the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
5. The judge first announced a sentence of 3 years with a non-parole period of 2 years and 6 months. He then realised it failed to conform with the "statutory ratio", so he increased the sentence to 3 years and 4 months.
6. ROS p10
7. Crown written submissions at [39]-[40]
8. In the extract above at [31] it appears possible that his Honour intended the words appearing after the hyphen in the first sentence to be the beginning of the next sentence and inadvertently omitted to correct this when revising the transcript. Nevertheless, this Court must determine the matter based upon the transcript as is. 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: 21 November 2022