Lowe v R

Cases Cited: Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Blackett v R [2021] NSWCCA 210
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Flick v R [2023] NSWCCA 197
LN v R [2020] NSWCCA 131
Ragg v R [2022] NSWCCA 150
RO v R [2019] NSWCCA 183
Singh v R [2021] NSWCCA 96
Stephens v R [2010] NSWCCA 93
Tukuafu v R [2024] NSWCCA 84

Category: Principal judgment

Parties: Rex (Crown/Respondent)
Scott Lowe (Applicant)

Representation: Counsel:
E Wilkins SC (Crown/Respondent)
T Ramrakha (Applicant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Applicant)

File Number(s): 2023/421100

Publication restriction: No

HEADNOTE

[This headnote is not to be read as part of the judgment]

Scott Lowe (the applicant) sought leave to appeal his aggregate sentence for four firearm offences and two drug offences committed on 21 November 2023. Following pleas of guilty the applicant was sentenced in the District Court to an aggregate term of 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months.

The applicant sought leave to appeal against his sentence on three grounds: first, that the sentencing judge erred in taking into account an offence on a Form 1 in assessing the objective seriousness of the principal offence, secondly, that the sentencing judge erred in finding that at least some of the ammunition that was found in the applicant’s possession was “compatible” with a shortened firearm of which he also had possession; and, thirdly, that the sentencing judge failed to take into account whether the applicant’s symptoms of PTSD would make his time in custody more onerous.

The Court (Kirk JA, Fagan and Yehia JJ) held, granting leave to appeal, upholding ground 1, dismissing grounds 2 and 3, but dismissing the appeal against sentence:

(1) The Form 1 offence of possession of a rifle with a defaced serial number should not have been taken into account in assessing the objective seriousness of the principal offence with which the Form 1 was associated, being possession of a shortened firearm without a permit, which was charged in respect of the same rifle. The facts and circumstances of the defaced firearm charge did not provide context for assessing the criminality of the principal offence: at [26].

Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146, [2002] NSWCCA 518; Ragg v R [2022] NSWCCA 150; Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; LN v R [2020] NSWCCA 131; Flick v R [2023] NSWCCA 197; Tukuafu v R [2024] NSWCCA 84 at [129].

(2) It was open to the sentencing judge to conclude that seized ammunition described in the statement of agreed facts as .22 Long Rifle calibre could be discharged from a shortened rifle described as .22 Long Rifle calibre: at [34] – [36].

(3) There was no evidence before the sentencing judge from which a conclusion could have been drawn that the applicant would bear an increased burden of imprisonment by reason of his PTSD symptoms: at [43].

Notwithstanding that ground 1 was made good, on the whole of the objective circumstances of the totality of the offending and the applicant’s subjective case, no lesser sentence was warranted: at [44].

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Musgrave in the District Court on 1 May 2025. The applicant pleaded guilty to four firearms charges and two drug charges. He agreed to have three further offences taken into account on Form 1 schedules, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the pleas of guilty the learned judge allowed a discount of 25% in arriving at each indicative sentence.

2. The offences were all committed on 21 November 2023, when firearms, ammunition and drugs were found by police at the applicant’s home. Particulars of each matter, the respective maximum penalties and the indicative sentences nominated by her Honour are as follows:

Sequence 1: possess shortened firearm without authority contrary to s 62(1)(b) of the Firearms Act 1996 (NSW). The subject firearm was a shortened .22 Long Rifle calibre single shot rifle, manufactured by Lithgow Arms. It was not capable of being fired. The firearm was assigned an exhibit number ending 3304. (Maximum 14 years imprisonment; indicative sentence 2 years and 6 months).

[In sentencing for Seq 1, Seq 11 was taken into account on a Form 1: a charge of possessing a defaced firearm contrary to s 66(1)(b) of the Firearms Act (maximum 14 years imprisonment). The charge concerned alteration of the serial number of the same shortened Lithgow .22 rifle, exhibit no. 3304, as referred to in Seq 1].

Sequence 2: possess shortened firearm without authority contrary to s 62(1)(b) of the Firearms Act. This offence concerned a shortened .22 Long Rifle calibre repeating bolt action rifle, manufactured by Anschutz. It was in working condition. The firearm was assigned an exhibit number ending 0769. (Maximum 14 years imprisonment; indicative sentence 2 years and 6 months).

Sequence 12: possess firearm in contravention of a firearms prohibition order, contrary to s 74(1) of the Firearms Act. A firearms prohibition order had been issued in respect of the applicant on 2 March 2016 and was served upon him on 3 June 2016. Sequence 12 related to the shortened Lithgow firearm, exhibit no. 3304. (Maximum five years imprisonment, indicative sentence 1 year).

Sequence 13: possess firearm in contravention of a firearms prohibition order, contrary to s 74(1) of the Firearms Act. This offence concerned the shortened Anschutz firearm, exhibit no. 0769. (Maximum five years imprisonment, indicative sentence 1 year and 2 months).

[In sentencing for Seq 13, Seq 5 was taken into account on a Form 1. It was a charge of possessing ammunition in contravention of s 74(3) of the Firearms Act (maximum 5 years imprisonment)].

Sequence 8: supply prohibited drugs (deemed supply of 10.13 g methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). (Maximum 15 years imprisonment, indicative sentence 7 months).

[In sentencing for Seq 8, Seq 14 was taken into account on a Form 1: a charge of dealing with proceeds of crime ($6,837 in cash), contrary to s 193C(2) of the Crimes Act 1900 (NSW) (maximum penalty three years imprisonment)].

Sequence 6: possession of a prohibited drug (48 g of cannabis leaf) contrary to s 10(1) of the Drug Misuse and Trafficking Act. Seq 6 was before the District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). (Maximum two years imprisonment, indicative sentence 6 months).

3. The aggregate sentence fixed by her Honour was 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months, backdated to commence from the date of arrest on 21 November 2023. The grounds of appeal for which leave is sought are as follows:

1 The sentencing judge erred in assessing the objective seriousness of Sequence 1 by taking into account the criminality of the Form 1 offence of being in possession of a defaced firearm.

2 The sentencing judge erred in finding that the firearm with Exhibit No [ending 0769] was “compatible” with at least some of the ammunition that had been found with the firearm and failed to accord procedural fairness to the applicant in relation to the finding.

3 The sentencing judge failed to take into account whether the applicant’s mental health issues would make his time in custody more onerous.

Ground 1 – Form 1 charge considered in objective gravity of principal offence

4. Ground 1 is concerned with the manner in which the learned judge assessed the objective gravity of Seq 1, being possession without a permit of the shortened Lithgow rifle exhibit no. 3304. The impugned passage of her Honour’s remarks on sentence is as follows:

The gun […] had its serial number defaced. The offender may not have defaced it, but the fact remains that he was in possession of a weapon that was capable of being easily circulated without detection. This aspect increases the objective seriousness of the offence. I note that this is the subject of the offence on the Form 1 and it is taken into account, but it’s criminality has also been taken into account in my estimate of the objective seriousness of the index offence [Seq 1]. The offence on the Form 1, therefore, adds little additional weight, if any, to the sentence to be imposed.

5. The seminal decision of this Court concerning the way in which a Form 1 offence may be taken into account in sentencing for a principal offence is Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (the Guideline Decision). Spigelman CJ, with whom the four other members of the Court agreed, stated the following principles:

[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. […]

[43] I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence.

[Emphasis added].

6. The applicant cited Stephens v R [2010] NSWCCA 93 as an illustration of what he submits is the error made by the learned judge in the present case. In Stephens v R, count 2 was a sexual assault aggravated by the infliction of actual bodily harm, with three counts of sexual assault against the same victim taken into account on a Form 1. Count 3 was another aggravated offence of the same kind, also against the same victim, with Form 1 matters of take and drive a conveyance, assault with act of indecency and resist police.

7. The sentencing judge categorised count 2 as an offence of the worst type, stating that his conclusion was confirmed by “taking into account the three sexual assault offences on the Form 1”. He held that count 3 was also of the worst type “and was aggravated by offences on the Form 1”.

8. Fullerton J held as follows (Latham and Schmidt JJ agreeing):

[69] The Crown conceded error were his Honour to have proceeded to sentence on the basis that the offences on the Form 1 operated to increase the level of objective seriousness for the offending comprehended by counts 2 and 3. That concession was properly made. It is beyond question that the offences on the Form 1 required his Honour to increase the penalty that would otherwise be imposed for the offending charged on indictment, and by a measure appropriate to the level of seriousness for those offences, but not so as to inflate the objective seriousness of that offending and certainly not to elevate the classification to a worst case. This is in accordance with the approach mandated by this Court in [the Guideline Decision, from Fullerton J quoted Spigelman CJ’s judgment at [42]].

At [73] Fullerton J concluded that the sentencing judge had erred in the use he had made of the Form 1 offences.

9. The applicant also cited RO v R [2019] NSWCCA 183. There, count 1 was of aggravated sexual intercourse with a child aged between 10 and 12 years. The sentencing judge’s assessment of objective seriousness took into consideration the conduct of the applicant in a Form 1 offence, which was of sexual intercourse with the same child on a different occasion. Beech-Jones J (then a judge of the Common Law Division, Bathurst CJ and N Adams J agreeing) held that the Crown had properly conceded error, which his Honour identified at two levels. The second level was as follows:

[57] Second, it is erroneous because it is inconsistent with the Sentencing Procedure Act for Form 1 offences to be considered in this manner. For present purposes, the relevance of the Form 1 offences to the exercise of the sentencing discretion for the subject offences was that they demonstrated an “additional need for personal deterrence and retribution” (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA); at [104] (Hoeben CJ at CL) and at [154] (Garling J); and [the Guideline Decision] at [42]).

10. In Singh v R [2021] NSWCCA 96, also relied upon by the applicant, a number of sexual offences were committed against a female victim in a single episode during which she was detained for advantage. The sentencing judge expressly treated the objective seriousness of some of the counts as aggravated by other offences that were committed during the same episode and were included on Form 1 schedules. Beech-Jones J (Bathurst CJ and Wilson J agreeing) said that the Crown had properly conceded error of the second type referred to at [57] of RO v R.

11. In Blackett v R [2021] NSWCCA 210, when assessing the objective seriousness of a principal offence of possessing child abuse material, the sentencing judge had included in her consideration some material that was only the subject of an offence of a similar kind on a Form 1. Basten JA (Adamson and Campbell JJ agreeing) said this:

[39] Further, as provided by s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the further offences are taken into account “in dealing with the offender for the principal offence”. It follows that the Court is sentencing only for the principal offence: [Basten JA cited the Guideline Decision]. There was no contention in the present case that it was other than an error to assess the objective circumstances of the principal offence by reference to the offending identified on the Form 1.

[40] As explained by Bathurst CJ in Abbas, Bodiotis, Taleb and Amoun v R the fact that there have been further offences “may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged”; further, “[t]hat approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account”. But those conclusions do not require or depend on a finding as to the objective seriousness of the charged offending based on the Form 1 material. The applicant’s submissions as to error in this respect should be accepted.

12. Judged by those consistent reiterations of the holding in the Guideline Decision, the impugned passage of the remarks on sentence in the present case appears to disclose clear error. However, the Crown has endeavoured to support the learned sentencing judge’s approach by reference to two further judgements of Beech-Jones J, as Chief Judge at Common Law, in Ragg v R [2022] NSWCCA 150 (N Adams and Lonergan JJ agreeing) and Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 (Garling and Yehia JJ agreeing).

13. Ragg v R did not concern the proper use of Form 1 offences. It concerned four counts of violent sexual offending against a single victim. The applicant had pleaded guilty to all charges. One contention on the application for leave to appeal was that the sentencing judge had erred in assessing the objective seriousness of each count by having regard to the others. Beech-Jones CJ at CL held that the applicant’s reliance upon RO v R and Singh v R to support that argument was misplaced. His Honour noted that in RO v R the Form 1 offence concerned “other criminal conduct committed on a different occasion” from that of the principal offence and that in Singh v R the Form 1 offence “occurred at or around the same time as the substantive offence”.

14. His Honour held as follows:

[38] Both RO and Singh are authority for the proposition that it is erroneous to use a Form 1 offence per se in assessing the objective seriousness of the substantive offence. This case does not concern a Form 1 offence. However, neither RO or Singh are authority for a blanket proposition that the facts and circumstances of a related offence can never be relevant to the assessment of the objective seriousness of the subject offence. There is no such proposition. The real issue is not so much whether the facts and circumstances of a related offence might be capable of affecting the assessment of the objective seriousness of the subject offence, but how they can affect that assessment.

[Emphasis added].

15. His Honour referred to LN v R [2020] NSWCCA 131, where Basten JA held that, in assessing the objective seriousness of the murder of a child, reference could be made to a series of uncharged assaults in the period preceding the murder on the basis that they provided context. In LN v R Hamill J recognised four purposes for which the uncharged assaults could be taken into account, all of which are constituents of context. The purposes are: (1) to establish that the murder was not an aberration on the part of an offender otherwise of good character; (2) to dispel any suggestion that the murder was an isolated incident; (3 )to support a finding of motive and state of mind at the time of the murder and (4) to establish that the victim was vulnerable, having been made so by the prior uncharged assaults.

16. In Ragg v R Beech-Jones CJ at CL held that in assessing the objective gravity of a proved offence, a sentencing judge could have regard to other proved offences in the same way that uncharged matters were considered in LN v R.

17. In Director of Public Prosecutions (NSW) v TH the Crown appealed against the inadequacy of an aggregate sentence for four sexual offences committed against the respondent’s stepson over a period of four years. There was a Form 1 in relation to each of counts 2 and 3, in each case nominating one additional sexual offence against the same victim during the same period. Beech-Jones CJ at CL held as follows (some citations omitted or abbreviated):

[23] First, the Form 1 offences can be taken into account on sentencing as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment (Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); and [include a group Guideline Decision] at [42]). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter ([Guideline Decision] at [18]).

[24] However, the inclusion of an offence on a Form 1 does not of itself increase the assessment of the objective seriousness of the substantive offence (Singh v R [2021] NSWCCA 96), although the facts and circumstances of the Form 1 offence (or uncharged acts) may be relevant to the assessment (see Ragg v R [2022] NSWCCA 150 at [38]−[47]). For example, such circumstances might place the substantive offence in context (LN v R [2020] NSWCCA 131 at [54] per Basten JA) or, if they involve the infliction of harm on the victim immediately prior to the substantive offence, they might demonstrate the victim’s vulnerability when the substantive offence was committed (LN v R at [159]; Ragg v R at [44]).

[Emphasis added].

18. It is clear from the above extracts that the further expositions of principle in Ragg v R and Director of Public Prosecutions (NSW) v TH provide no support for the approach taken by the learned sentencing judge in the present case. The principal offence, Seq 1, was constituted by the applicant being in possession of the Lithgow firearm exhibit no. 3304 in circumstances where it answered the description of being shortened and where the applicant had no permit. The only “facts or circumstances” of the Form 1 offence were that at the time when the applicant was in possession of that firearm its serial number was defaced. The circumstance of defacement did nothing to “place in context” the substantive offence, nor was that circumstance relevant to assessing the objective gravity of the principal offence in any of the ways contemplated either in LN v R or in any other authority on the subject.

19. Section 66(1)(b) of the Firearms Act, under which the Form 1 offence was charged, provides for a basis of criminality quite distinct from that which was charged in the principal offence, Seq 1. Section 66(1)(b) exposes a person in possession of a firearm to punishment on account of it being defaced, whereas Seq 1 was laid under s 62(1)(b) on account of it being shortened and its possession not being authorised by permit. Her Honour’s treatment of the Seq 1 offence as aggravated by the defacement effectively made the applicant liable to punishment for a discrete offence of which he had not been convicted and which the prosecution had elected not to include on the indictment but to place on a Form 1, subject to the well-established limitations upon how that could be used on sentence.

20. The Crown also relies upon Flick v R [2023] NSWCCA 197. The applicant in that case was sentenced on a number of counts of aggravated break enter and commit larceny, contrary to s 112(2) of the Crimes Act. The particulars were that he broke into several premises and stole the keys to luxury motor vehicles that were parked on or near the respective properties. Associated with each s 112(2) count was a Form 1 on which the applicant admitted a further offence of stealing the motor vehicle to which the stolen key belonged.

21. Wilson J (Meagher JA and Sweeney J agreeing) held that there was no error in the sentencing judge having taken into account the stealing of the motor vehicles when assessing the objective gravity of the principal break and enter offences. At [75] her Honour said that “[in] each instance the [motor vehicle theft] offence […] that had been placed on the individual Form 1 […] was inextricably linked to the principal offence”. That statement was treated by the Crown in the present application as if it were the formulation of a standalone test or principle. That is not the effect of her Honour’s reasons.

22. After referring to Ragg v R and Director of Public Prosecutions (NSW) v TH, Wilson J held as follows:

[78] The theft of the motor vehicles constituted the achievement of the principal aim of the applicant in committing the s 112(2) offences: he was able to secure the keys to the relevant vehicles from the dwelling houses, thus enabling the cars to be easily stolen, with no damage occasioned to them by a forced entry or forcibly starting the vehicle. Assessing the gravity of the s 112(2) offences without reference to the subsequent theft of the cars would have been entirely artificial and led to an incorrect assessment of their gravity. The Form 1 offences informed the assessment of the gravity of the principal offending and placed it in a proper context. There was no error in his Honour’s assessment and the regard he had to the offences on the Form 1 documents for that purpose.

23. That reasoning is a direct application of the essential principle established by L**N v R, Ragg v R and Director of Public Prosecutions (NSW) v TH*.* The fact that in each case the vehicle stolen in the Form 1 offending was the vehicle that could be opened and driven with the key that had been obtained in the principal break and enter offence was a contextual circumstance relevant to the gravity of the break and enter. It showed that each break and enter was not perpetrated as an isolated crime. It revealed a motive for each of the principal offences, namely, that each was undertaken with a view to facilitating the commission of the further crime of motor vehicle theft.

24. In Tukuafu v R [2024] NSWCCA 84 at [129], Huggett J (Ward P and Chen J agreeing) summed up the authorities down to and including Flick v R as establishing that where a Form 1 offence is to be taken into account in respect of the principal offence, it may be used to:

1 … increase the weight to be afforded to personal (or specific) deterrence and retribution.

2 … provide the context of the offending for which an offender is to be sentenced.

3 … demonstrate that a principal offence was not isolated or aberrant but is representative of an ongoing course of conduct.

4 … inform an offender’s moral culpability.

5 … establish that an offender is not a person of good character.

6 … establish an offender’s motive, state of mind and/or intention at the time the principal offence is committed.

7 … establish an offender’s awareness of the complainant’s vulnerability.

25. In that list, point 1 comes from the Guideline Decision. Points 3-7 are all aspects of “context” as referred to in point 2. Points 2-7 derive from Ragg v R – and from LN v R as considered by Beech-Jones CJ at CL in Ragg v R. We would respectfully add that what may be used in the ways listed at points 2-7 is not the legal fact of the commission of the Form 1 offence of itself but, rather, any fact or circumstance of the Form 1 offending that may be relevant to the context etc of the principal matter. That is a distinction drawn in the passages cited at [14] and [17] above, where Beech-Jones CJ at CL referred to a Form 1 offence “per se” or “of itself”.

26. On the present application the Crown endeavoured to persuade the Court that defacement of the serial number on the Lithgow rifle exhibit no. 3304 was “inextricably linked” to the applicant’s possession of that firearm with its shortened barrel and without a permit. The argument is unsustainable. It takes Wilson J’s phrase in Flick v R out of context and attempts to give it a field of operation beyond what her Honour could be said to have intended. The question is whether the characteristic of defacement provided relevant context for assessing the criminality of the applicant’s possession of the shortened firearm without a permit – and the answer is no, it did not.

27. Hudson v R [2025] NSWCCA 194 is a recent example of a case like Flick v R where some of the facts and circumstances of Form 1 offending provided context that was relevant to determining the objective seriousness of the principal offence, in contrast with the present case.

28. As the error alleged in ground 1 has been established, leave to appeal must be granted. After consideration of the other grounds it will be necessary to examine whether any lesser aggregate sentence is warranted in law. It must be said that the error was manifestly of negligible significance in her Honour’s determination of the indicative sentence for Seq 1. Proceeding in accordance with the Guideline Decision, the objective seriousness of the principal offence would not have been regarded as aggravated by the fact that the applicant possessed the firearm in a defaced condition but, on the other hand, her Honour would have had to consider an uplift in the indicative sentence to provide additional deterrence and retribution on account of the admitted Form 1 offence.

29. Sequence 2 concerns a firearm in working order, which made it to some extent objectively more serious than Seq 1. There was no Form 1 offence to be taken into account on Seq 2. Had the error in ground 1 not been made, it could reasonably have been expected that the indicative sentences for Seq 1 and Seq 2 would have been the same. Greater objective gravity for Seq 2 would balance out against the influence of the Form 1 offence for Seq 1. The sentences that her Honour in fact indicated for Seq 1 and Seq 2 were the same. The possibility that her Honour’s aggregate sentence would have been any different if the error had not occurred seems remote.

Ground 2 – finding that ammunition compatible with firearms

30. In the statement of agreed facts the ammunition that was the subject of the possession charge in Seq 5 (taken into account in sentencing for Seq 13) was listed as follows:

Thirty-two .22 Long Rifle calibre cartridges

Three .22 Long Rifle shot shell calibre cartridges

Two .22 Winchester Magnum Rimfire calibre cartridges

Fifteen 12-gauge shot gun cartridges

31. The two shortened firearms which were the subject of Sequences 1 and 12 (the Lithgow rifle, exhibit no. 3304) and Sequences 2 and 13 (the Anschutz rifle, exhibit no. 0769) were both identified in the statement of agreed facts as being of “.22 Long Rifle calibre”.

32. Ground 2 is directed to the following passage of the learned judge’s remarks on sentence:

I infer from the fact that some of the ammunition found being .22 calibre rounds meant that at least some of the ammunition was compatible with the .22 shortened rifle, which places some upward pressure on the objective seriousness, noting that only one of the firearms was in any event in working order.

33. In that passage her Honour probably intended to say “compatible with the .22 shortened rifles”, as both of them were of the same calibre. The applicant submits that there was no direct, explicit opinion evidence about compatibility of the ammunition with the firearms. He submits that, as this was a matter adverse to him in the assessment of objective gravity, it had to be established by the Crown beyond reasonable doubt. He complains that the Crown had not raised any allegation of compatibility and that he therefore had no opportunity to adduce evidence or otherwise to be heard on whether the ammunition could have been used in the working firearm. In written submissions, counsel for the applicant put the following:

159 The inference drawn by the sentencing judge appears to have been based on little more than the fact that cartridges were .22 calibre rounds.

160 The calibre only described the internal dimensions of the barrel and not whether the rounds were compatible.

34. In common usage the calibre of a firearm refers to the internal diameter of the bore of the barrel and the calibre of a live round of ammunition refers to the diameter of its projectile. In the absence of any further evidence on the subject, it was open to the learned sentencing judge to conclude that ammunition described in the statement of agreed facts as .22 calibre could be discharged from a shortened rifle, in working order, also described as .22 calibre. Nothing in the statement of facts or in other evidence before her Honour raised any doubt about compatibility in that sense.

35. In ordinary usage, a .22 rifle would be understood as one from which there could be fired a bullet of diameter .22 of an inch, or 5.7 mm.

36. That is sufficient to dispose of the applicant’s argument on ground 2. Although not necessary to the Court’s decision on this ground, it is noted that the applicant’s argument overlooks the agreed facts that the calibre of most of the ammunition was not merely “.22” but “.22 Long Rifle”. “Long Rifle” is part of the calibre classification, designating a standard type of ammunition with uniform specifications additional to the diameter of the projectile. The full designation of the calibre of each firearm was “.22 Long Rifle calibre”, which matched exactly the full designation of 32 of the seized rounds of ammunition, indicating that each rifle would accept ammunition of this standard type. This is ballistics terminology used in a statement of facts upon the basis of which the applicant agreed to be sentenced.

Ground 3 – the effect of mental health making custody burdensome

37. The applicant was 35 years old at the date of the offences. In the sentence hearing there was tendered on his behalf a report of a psychologist, Ms Grujoska. The history she obtained from the applicant on 4 March 2025 included that he had been physically abused during childhood by his mother and stepfather. The applicant informed Ms Grujoska that he had also been a member of an outlaw motorcycle gang and that he had suffered heightened anxiety and concern for his physical safety upon separating from the gang.

38. Ms Grujoska administered a 20 minute test to measure symptoms of post traumatic stress disorder (PTSD) and found the following:

His scores suggested that he is experiencing several symptoms consistent with that of PTSD, such as repeated, disturbing dreams and memories of the stressful experience, suddenly feeling or acting as if the experience were happening again, avoiding memories, and conversations of the event, experiencing physical reactions to reminders of the event and being alert or on guard. In addition, his scores appear to significantly surpass the cut-off score for what is deemed to be probable PTSD and suggests he will require support to specifically target the symptoms.

39. The report does not identify any specific “stressful experience” or “event” that Ms Grujoska thought might have been the cause of the possible PTSD. The history she took only refers to excessive physical discipline by his parents, which does not seem to have been by any means extreme and in which no specific incidents, or any degree of severity, are described.

40. Ms Grujoska gave the following further opinions:

24 […] This condition [PTSD] will need to be reviewed and monitored as his current symptoms may worsen given he is in custody and in an environment that can be perceived as threatening, particularly since exiting a motorcycle club, which further suggests his time in custody may be more onerous than the average prisoner if he has fears of repercussions whilst in gaol.

30 It is important to note that although custodial treatment is available to Mr Lowe, the effects of continued incarceration, however, will impact on his ability to access the appropriate support services required for his mental health. This limited access to services, and extended time of the car’s oration will exacerbate Mr Lowe’s mental health issues and will hinder appropriate rehabilitation and recovery. As a result, community-based support services would be deemed more beneficial for him as a means of intensive intervention

41. Those passages are the high point of evidence on sentence concerning the possible relevance of PTSD symptoms to the applicant’s well-being in custody. He was bail refused from his arrest on 21 November 2023. When interviewed by Ms Grujoska he had been on remand for 16 months. He did not suggest to her that his PTSD symptoms had made his time in custody more difficult than otherwise it would have been. He gave no account of any stimulation or exacerbation of symptoms by reason of any aspect of his experience in prison. In particular, noting [24] of Ms Grujoska’s report, the applicant did not describe to her any sense or experience of threat in the prison environment.

42. In written submissions to her Honour it was not contended that the PTSD symptoms would exacerbate the burden of imprisonment. In the course of oral submissions her Honour pointed out that [30] of the psychologist’s report is “such a general statement” and asked counsel for the applicant how that paragraph could assist. Counsel said this:

[It is] limited in its weight. That’s why I can’t say with confidence that the Court can accept significant onerous conditions because of that. It’s an observation, its generalised observation […]

The next sentence of counsel’s submission was poorly expressed but was to the effect that more onerous prison time, by reason of the PTSD symptoms, was “not something that the Court couldn’t find”.

43. Her Honour accepted that the applicant “has post-traumatic stress disorder or the symptoms of this” but she was not able to determine whether the cause lay in childhood experiences or in more recent adult experiences with outlaw motorcycle gangs and drugs. The applicant’s complaint in ground 3 is that it “was at least open” to the learned judge to conclude that his time in custody would be more onerous by reason of the PTSD symptoms but that her Honour “failed to consider” the matter. Contrary to that submission, there was in reality no evidence upon which the learned judge could have drawn a conclusion as to an increased burden of imprisonment. The faint oral submission of counsel who appeared for the applicant in the sentence proceedings all but conceded that. There is no merit in ground 3.

Orders

44. The Court’s conclusion on ground 1 makes it necessary to consider whether, on the whole of the objective circumstances of the totality of the offending and taking into account the applicant’s subjective case, any lesser sentence than the aggregate imposed by the learned judge is warranted in law. Having considered all sentencing factors the Court is satisfied no lesser sentence is warranted.

45. The orders of the Court are:

1 Grant leave to the applicant to appeal against the sentence imposed on 1 May 2025.

2 Dismiss the appeal.

**********