Lynch v R

Catchwords: CRIME – appeals – appeal against sentence – firearms offences – plea of guilty – whether the sentencing judge erred in failing to provide a discount for the applicant’s plea after the close of Crown case – whether the sentencing judge erred in aggravating the objective seriousness by taking into account offending not subject of charge – leave to appeal granted – appeal upheld – applicant re-sentenced

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Newman (a pseudonym) v R [2019] NSWCCA 157

Category: Principal judgment

Parties: Samuel Joseph Lynch (Applicant)
Rex (Respondent)

Representation: Counsel:
K Averre (Applicant)
K Jeffreys (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00198961

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory prohibition restricting the publication or dissemination of the names of victims and witnesses, who were children at the time of the offence

JUDGMENT

1. KIRK JA: I agree with Rigg J.

2. YEHIA J: I have had the considerable advantage of reading the judgment of Rigg J in draft. I agree with the proposed orders and with her Honour’s reasons. I prefer to express no view in this case about whether a failure to apply a sentencing discount for one of a number of charges dealt with by way of an aggregate sentence necessarily leads to a full re-sentencing exercise.

3. RIGG J: The applicant, Samuel Lynch, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his aggregate sentence of 16 years imprisonment, with a non-parole period of 12 years, imposed by his Honour Newlinds SC DCJ on 10 May 2024.

4. The applicant’s sentence was ordered to commence on 27 February 2023, although he has been in custody since his arrest on 26 July 2021. The applicant will be first eligible for release on parole on 26 February 2035 and his head sentence will expire on 26 February 2039. On 17 October 2023 an aggregate sentence of 3 years imprisonment commencing on 15 December 2021, with a non-parole period of 23 months concluding on 14 November 2023, was imposed by the Grafton Local Court for offences of using an offensive weapon to commit an indictable offence, assault occasioning actual bodily harm, supplying a prohibited drug (more than the small but less than the indictable quantity) and supplying a drug on an ongoing basis.

5. The applicant was sentenced for offences contained on two indictments in respect of five firearms offences. The following table sets out the offences, maximum penalties, and the indicative sentences nominated by the sentencing judge. The offences are described in shorthand form. The specific terms of the possession counts will need to be later addressed:

| Count | Charge | Maximum penalty and standard non-parole period (SNPP) | Date of offence | Indicative sentence | Discount applied | | Sentence Indictment | | 1 | Supply firearm, shotgun – s 51(2) Firearms Act 1996 (NSW) | 5 years imprisonment SNPP: None | Between 4 – 8 July 2021 | 2 years | 5% | | 2 | Supply prohibited pistol, revolver – s 51(2A) Firearms Act | 20 years imprisonment SNPP: 10 years | Between 4 – 8 July 2021 | 2 years NPP: 18 months | 5% | | 3 | Possess prohibited pistol in contravention of a Firearms Prohibition Order – s 74(1) Firearms Act | 14 years imprisonment SNPP: None | 10 July 2021 | 7 years | 10% | | Trial Indictment | | 3 | Fire firearm in manner likely to endanger the safety of (the victim) – s 93G(1)(c) Crimes Act 1900 (NSW) | 10 years imprisonment SNPP: None | 10 July 2021 | 8 years | None | | 4 | Possess prohibited pistol not authorised by permit to hold – s 7(1) Firearms Act | 14 years imprisonment SNPP: 4 years | 10 July 2021 | 10 years | 10% |

6. The applicant had a trial listed to commence on 29 January 2024 in connection with these and two other charges. He pleaded guilty to all three counts on the Sentence Indictment on that day. The difference in discounts was due to the timing of his indication of these pleas. On the same day he pleaded not guilty before his Honour and a jury to counts 1-3 but guilty to count 4 on the Trial Indictment. However after the close of the Crown case on 12 February 2024, the applicant pleaded guilty to Trial Indictment count 3. He was acquitted of both charges left for the consideration of the jury.

7. The applicant relies on the following grounds of appeal:

“(1) The sentencing judge erred in failing to provide a discount for the applicant’s plea to Trial Indictment Count 3;

(2) The sentencing judge erred in the assessment of the objective seriousness of the offending:

(a) The sentencing judge erred in aggravating the objective seriousness of Trial Indictment Count 3 by finding the applicant “intentionally and maliciously fired” the firearm at the victim, being a matter which would have resulted in the applicant being liable for a more serious offence;

(b) The sentencing judge erred in aggravating the objective seriousness of Trial Indictment Count 4 by taking into account other offending not the subject of that charge;

(c) The sentencing judge erred in aggravating the objective seriousness of Sentence Indictment Count 3 by taking into account other offending not the subject of that charge;

(3) The aggregate sentence imposed was in all of the circumstances manifestly excessive.”

8. The respondent concedes that it is open to the Court to find that the error pleaded by the applicant in ground 1 is made out and to proceed to re-sentence. A mandatory statutory discount of 5% for the applicant’s guilty plea at the close of the Crown case was required: s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”). Although the error is in respect of the indicative sentence for count 3 on the Trial Indictment only, the respondent accepts that it is an error that, in the present case, had the capacity to influence the aggregate sentence that was imposed: Newman (a pseudonym) v R [2019] NSWCCA 157 (“Newman”) at [11]. The respondent accepts that this re-sentencing task would involve reconsideration of all indicative sentences as well as the aggregate sentence, but contends that no lesser sentence is warranted in law.

9. The mandatory discount was not only not brought to the attention of the sentencing judge – his Honour was informed by the representatives of both parties that there was no applicable discount. The statement of agreed facts tendered in the District Court included a table which indicated that there was no discount to be provided in relation to count 3 on the Trial Indictment. The Crown sentence summary, and the written submissions for the applicant both stated there was no discount applicable for this count.

10. Acknowledging the concession of the Crown, I am not of the view that this case should be taken as endorsing a universal proposition that failure to provide a 5% discount for one of a number of charges dealt with by way of an aggregate sentence necessarily leads to a full re-sentencing exercise by this Court. In Newman there was error in relation to a greater number of offences (12 out of 14). However, for the reasons that follow, there was, additionally to the error in connection with count 3 on the Trial Indictment (“the discharge offence”), error as asserted in grounds 2(b) and (c) of the Notice of Appeal, these relating to the other two most serious offences; namely, the possession offences. These issues would have required resolution even had the Court moved straight to re-sentencing. Accordingly, the substance of a number of the applicant’s contentions on appeal will be addressed.

Circumstances of the offending

11. The circumstances of the applicant’s offending were before the Court by way of a statement of agreed facts. As will be outlined further below, his Honour took into account additional evidence from the jury trial he had presided over, and drew inferences from this evidence. At this stage the circumstances of the offending will be set out by reasonably closely recording the salient aspects of the agreed facts.

12. On 2 July 2020 the applicant was served with a Firearms Prohibition Order (“FPO”). In breach of that order, the applicant had possession of multiple guns, gun parts, and ammunition prior to his arrest on 26 July 2021. Most significantly, he had regular possession of a .22 Long Rifle calibre RECK Single Action revolver with capacity to hold six .22 calibre Long Rifle bullets (“the revolver” or “the pistol”). The barrel of the revolver had been shortened, obscuring the end of the serial number (on the barrel only). The revolver had a “light” trigger-pull, being only 1.28 pounds as opposed to the four to six pounds expected as standard, making the gun inherently more dangerous.

13. The applicant was in the habit of carrying the revolver “everywhere with [him]”, loaded and concealed within a black Nike sock. The purpose of the sock was “because it was dark and it’s easy to hide”. It is unknown from what date the applicant came into possession of the revolver, but it was for a lengthy enough period for him to need to replace his sock holder multiple times, due to holes from the barrel. Telephone communications lawfully intercepted at some stage during a police investigation conducted between January and July 2021 revealed multiple conversations about the applicant possessing guns. In March 2021 he referred to “pulling a gun” on someone in the street, and in May 2021 was asked by someone “[W]as I safe when you were pointing a gun at my fucking head?” In June 2021 the applicant was contacted a number of times by his former girlfriend and co-offender about collecting “things” he had left at her home (where a child lived), which included multiple items in a sock which would explode if burnt - which was accepted to have been ammunition. The applicant has been convicted of dealing drugs during the period in which he was in possession of these items.

Supply Firearms

14. On 5 July 2021 the applicant initiated contact with an associate who has a criminal record, including for committing offences while armed, and who has never held a firearms licence. The associate asked the applicant if he could get a silencer and the applicant responded “Nah, but I make em”. That was not mere boasting; when arrested on 26 July 2021, the applicant had in his room what was confirmed by ballistics analysis to be a homemade silencer. The associate asked the applicant to send him a “list of what you can get + what you got now”. The following morning the associate reminded the applicant to send him “the list”. The applicant replied that he had a “4.10 single” (a .410 calibre shotgun), a “12 single” (a 12 gauge shotgun) and “mi 22 6 shot” (the revolver). The conversation then involved confirmation of a price of “500” for the first two. The applicant sent pictures of himself with the revolver, and holding a gun with a silencer, to the associate. Those photographs were taken in furtherance of the supply, as proof of possession.

15. Over the course of three days the applicant offered to supply two shotguns to the associate for $500 each, and the revolver (a prohibited pistol) for an unknown amount. The offer was accepted in relation to both shotguns, but the sale did not in fact eventuate. The associate had also requested a pump-action shotgun, and the applicant was in possession of a weapon of this nature by the time of his arrest.

10 July 2021

16. On 10 July 2021 the applicant’s nephew was socialising with others at a residence in South Grafton. The nephew was clipped in the back of the head by a person and left, threatening to get a gun, or his uncle, or both. He ran over the street and jumped the fence to where the applicant was residing. The two came back to the outside of the residence where the applicant’s nephew had been socialising, the applicant deliberately bringing with him the loaded revolver, concealed down his pants.

17. The information following in this paragraph was not challenged factually by the applicant during the sentence proceedings, but objected to. While he has not been found criminally responsible for discharging the revolver with the intention of causing grievous bodily harm, and it is unknown the basis on which the jury acquitted him, as a consequence of the applicant bringing and producing a loaded prohibited pistol (in contravention of an FPO) to the home, a 15-year-old boy was shot through the torso. That boy was considered by doctors to be very lucky to have survived, due to the gunshot missing his internal organs and passing through his back.

Count 3 (Trial Indictment)

18. After that gun discharged, the applicant attempted to flee the scene. The brother of the boy who had been shot started to follow the applicant with a hockey stick, down a dark pathway towards the park that ran behind the street where the gathering was held. Before the brother of the injured boy could reach the applicant, the victim of the discharge offence for sentence came running past and grabbed the hockey stick. He pursued the applicant and struck him to the back and / or side of his head with the hockey stick, although not with great force.

19. The applicant was unhurt but enraged by the act. He thought the victim was a “mother fucker”, and wanted to shoot him. The applicant ducked down and turned around, halfway to the ground, pointing the gun down low and deliberately discharged it in a swinging motion. He did so as the victim was running away. Immediately afterwards, the applicant pointed the gun at the brother of the originally injured boy, who was still standing nearby. That person raised his two hands in submission and told the applicant he was just getting his phone. The applicant did not shoot again and left through the park. The victim of the firing of the revolver did not realise immediately he had been shot, but did as soon as he put weight on his leg. The bullet had gone through his overalls and grazed his left knee, leaving a scar.

The applicant’s circumstances

20. The applicant’s subjective circumstances were before the Court by virtue of the criminal and custodial histories tendered by the Crown, two Justice Health psychiatric reports tendered by the Crown (one by Dr Gordon Elliott dated 8 April 2024, requested by the sentencing judge and one by Dr Natasha Rae dated 26 July 2023, requested by the Local Court in relation to the applicant’s drug supply and other matters). A Sentencing Assessment Report dated 23 May 2023, also relating to the applicant’s earlier Local Court proceedings for drug offending, was tendered by the Crown.

21. The applicant was born in 1991 and was 30 years old at the time of committing each offence. He was 33 when sentenced and is now 34. He is an Indigenous male of the Bundjalung people from the Grafton area and has links to the Stradbroke Island area.

22. The sentencing judge found that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) were enlivened due to the applicant’s deprived upbringing, as set out in Dr Rae’s report, which his Honour accepted and cited in his remarks on sentence. The applicant was the eldest of four children. His father was in custody for firearms offences during his childhood. His mother used opiates and was incapable of caring for the children. As a child he suffered significant abuse which is detailed in the reports. The applicant stated that the family was frequently homeless because his mother would be evicted. The family then lived on the streets, often sleeping in the back seat of cars. He recalled living in a share house in one room. That house was frequented by drug users. The applicant was placed into foster care at the age of 10.

23. The applicant’s schooling was disrupted, although he completed year 10. He was housed in numerous very short-term foster placements until he was briefly placed into the care of his aunt, which was not beneficial, and during which time he attempted to hang himself.

24. At the age of 16, the applicant moved to Geelong to see his mother, whom he found was dependent on heroin. The applicant started dealing drugs at this time. His mother evicted him at 17 and he returned to Grafton, where he was homeless and started committing armed robberies to support himself. He believed juvenile detention was better than living on the streets.

25. In 2009 the applicant entered a stable relationship for about nine years and worked by fencing, cutting sugar cane, and tree planting for at least four years. The couple had a child who was 10 years old at the time of Dr Rae writing her report, living with her mother. The relationship ended due to the applicant’s drug use and infidelity. The applicant was incarcerated in 2017 in the context of the relationship breakup where he poured petrol into the interior of his ex-partner’s car.

26. The applicant’s criminal and custodial records indicate that in September 2008 he was sentenced to control orders in the Grafton Children’s Court for two offences of armed robbery committed in April and July 2008. On appeal to the District Court these sentences were varied to provide instead for 2 years probation. As an adult the applicant was sentenced to imprisonment for 12 months with a non-parole period of 6 months for assault occasioning actual bodily harm in 2009. There were then no criminal convictions until 2017, when the applicant was sentenced to concurrent sentences of 9 months imprisonment with 6 month non-parole periods for common assault, two counts of stalking and intimidation, and two counts of possession of an unregistered firearm (prohibited firearm). He was on that occasion also convicted with no further penalty for possession of ammunition.

27. From late 2017 to early 2018 the applicant served a 6 month non-parole period and a balance of term of 6 months for intentionally choking a person with recklessness. In 2019 he was sentenced to imprisonment for 18 months with a non-parole period of 12 months for possession of an unauthorised firearm and supplying a prohibited drug (more than the indictable quantity). While serving that sentence of imprisonment the applicant escaped or attempted to escape from lawful custody, and his sentence was extended by 6 months. He was released to parole on 22 July 2020 and that parole expired in January 2021.

28. As noted above (at [4]), on 17 October 2023 an aggregate sentence of 3 years imprisonment commencing on 15 December 2021, with a non-parole period of 23 months concluding on 14 November 2023, was imposed by the Grafton Local Court for offences of using an offensive weapon to commit an indictable offence, assault occasioning actual bodily harm, supplying a prohibited drug (more than the small but less than the indictable quantity) and supplying a drug on an ongoing basis.

29. Dr Rae diagnosed the applicant with a moderate methamphetamine use disorder, noting that he was opiate dependent in custody, and diagnosed him with a severe cannabis use disorder from his early teens. At the time of her report, the applicant was diverting Buprenorphine in custody and was on the waitlist for the Buprenorphine depot injection (Bivudal).

30. Dr Rae also made a diagnosis of antisocial personality disorder by recording the fact that the applicant experienced an extremely prejudicial early childhood including severe neglect, parental criminality, and parental drug use. He suffered significant abuse from a young age and was placed into unstable foster care placements from the age of 10. She stated that his early disrupted attachments and abuse affected his ability to manage his emotions and develop prosocial coping skills to manage psychological distress. He had limited parental guidance; his father was in custody and his mother was dependent on opiates. She stated “Mr Lynch has developed abnormal personality traits because of his early environment and fulfils criteria for an antisocial personality disorder.”

31. In the opinion of Dr Rae, the applicant did not have a cognitive impairment. As to whether he had a mental health impairment, she stated:

“Mr Lynch’s personality pathology results in an unstable mood, increased levels of irritability and impulsivity, an inability to profit from punishment and significant challenges in interpersonal relationships. His personality construct would be considered a mental health impairment and may respond to long-term psychological therapy.

Unfortunately, since his traits are so entrenched, the therapy would have limited benefit unless delivered within a secure framework which included employment, housing and abstinence from illicit substances.”

32. To Dr Rae the applicant reported chronic thoughts of hopelessness and suicidal ideation.

33. Dr Elliott agreed with Dr Rae’s assessment and noted that the significant development since Dr Rae’s report was completed was that the applicant had commenced treatment with a long-acting opioid medication, Buvidal, receiving a monthly injection of 96 mg.

34. Dr Elliott recorded a similar history to that contained in Dr Rae’s report. To Dr Elliott the applicant also referred to introduction to heroin dealing by his parents in his early adolescence, with a reluctance to discuss this further. Dr Elliott agreed with Dr Rae’s observation of a history of severe early developmental trauma characterised by neglect, criminal modelling, significant abuse, inconsistent housing, and periods of homelessness and constantly varying parental figures. In this context the applicant developed substance use problems from an extremely early age and began dealing drugs under the influence of his parents. Dr Elliott also found features of the applicant’s history consistent with an antisocial personality disorder.

35. Dr Elliott was of the view that the applicant did not present with symptoms of a major mental illness but noted his history of severe early developmental trauma, from which he developed substance use problems. Dr Elliott diagnosed the applicant with cannabis, opiate, and stimulant use disorders and noted that the applicant reported an earlier alcohol use disorder.

36. Dr Elliott set out the applicant’s account of his circumstances prior to his arrest in the present matter. The applicant said his girlfriend had just had a miscarriage and that she was being unfaithful. He said that he had: “a lot of people using me” and friends “stabbing me in the back.” The applicant had debts and was renting a room in a share house. The applicant said he was not taking any medication prior to his arrest and described using a large quantity of illicit drugs in the lead up to the offences.

37. At that time he was smoking up to 1.75 g of methamphetamine daily, smoking up to half an ounce of cannabis daily, and using ecstasy occasionally. He denied significant use of alcohol during this period. He was seeing his daughter (11 years old at the time of Dr Elliott’s assessment) on weekends prior to his arrest.

38. The applicant spoke positively to Dr Elliott of his recent progress, attributing this largely to commencing Buprenorphine. He had stopped offending in custody. The applicant expressed enthusiasm to become a tattoo artist. The applicant was uncertain where he would live on release and had few, if any, supports.

39. Dr Elliott’s treatment recommendation was as follows:

“Mr Lynch’s recent commencement on Buvidal Is a positive development and has given him some cause for optimism that he may be able to avoid yet another relapse into substance use and a return to custody. He will require more than this intervention alone however. Currently he appears homeless, and his plans are to return to the same accommodation where he was residing at the time of his arrest and where he was exposed to and facilitated the daily drug use of his flatmates and others. Ideally, he will be provided with assistance in sourcing more suitable accommodation and have an opportunity to achieve a period of stability on Buvidal and contemplate a return to gainful employment to provide him with structure, a sense of purpose and assist with his sense of self-esteem. He may benefit from a referral from his GP to a psychologist skilled in trauma informed counselling.”

40. The applicant was assessed as having a “medium high” risk of reoffending by the author of the 23 May 2023 Sentencing Assessment Report, a Community Corrections Officer. The same report recorded the applicant’s response to his previous period of parole, ending in January 2021, as “superficial”. Furthermore, despite being encouraged to address his mental health and illicit substance use, his drug use continued and his motivation to cease was then limited.

Sentencing proceedings and judgment

41. In addition to the evidentiary material outlined above, there was a considerable body of evidence tendered at first instance, and contained within the material before this Court, relating to individuals who in different and peripheral respects may be described as co-offenders of the applicant. The connections were related to possession, at alternative times, of the revolver, and in relation to the drug supply and assault charges for which the applicant had been dealt with in the Local Court. There were no submissions at first instance or on appeal suggesting that the outcomes for any of these others had any role to play in determining the appropriate sentence for this applicant.

42. A significant aspect of the applicant’s complaint on appeal and the task for this Court in re-sentencing concerns the manner in which his Honour considered material outside the agreed facts and evidence tendered in the sentence proceedings. The applicant was not being sentenced for any offence for which he had been convicted at trial, and the parties relied upon agreed facts for sentence for all charges, which included those aspects of the trial evidence chosen to be placed before his Honour for sentence. This included a number of paragraphs that were not objected to, and two paragraphs which were objected to as a matter of principle; although agreed upon in terms of their accuracy (see above at [17]).

43. Relevant to the fact of his Honour’s reference to material beyond the agreed facts is the lack of stricture of approach to this issue by the parties during the sentence proceedings. The representative of the prosecution did remind his Honour that he could not use evidence apparently given by the applicant in the trial that he had discharged the gun at a child’s birthday party, because he was given a certificate (presumably a certificate pursuant to s 128 of the Evidence Act 1995 (NSW)). Whilst this was plainly correct, a more comprehensive answer would have been to remind his Honour that the parties had determined to place the evidence from the trial upon which they relied in the agreed facts. Although some informality is regular for the purposes of proof in sentencing proceedings, the degree of informality of the representatives of the parties in these proceedings has caused some difficulties.

44. His Honour specifically questioned the parties’ representatives about the need for making findings regarding the basis for the acquittals, and on behalf of both parties submissions were advanced regarding the possible reasons for these, and discussion was otherwise engaged in regarding aspects of the evidence at trial that was not contained in the agreed facts. The response for both parties should have been to remind his Honour that there was no need to consider the acquittals for the purpose of sentencing, nor the evidence surrounding those allegations, except to the extent that this evidence was included in the agreed facts (and that there were two paragraphs in the agreed facts the subject of objection).

45. It is common ground before this Court that for the purpose of re-sentencing we are bound by the material tendered on sentence, and contained within the appeal books. This does not include trial transcript (except to the extent that it has been incorporated in the agreed facts). His Honour was equally limited, and the parties’ representatives should have maintained sufficient formality when dealing with their cases on sentence to make this plain (or alternately, make clear the additional aspects of the trial evidence his Honour could legitimately take into account).

46. Directly relevant to the applicant’s ground 2(b) of appeal, the submission was advanced for the prosecution at first instance that the contravention of the FPO was not just for possession of the pistol, but “all the other guns that he was trying to supply.” This was contrary to the terms of the charge to which the applicant pleaded guilty, which were that “On 10 July 2021, at Grafton in the State of New South Wales, did possess a firearm, namely a prohibited pistol, in contravention of a Firearms Prohibition Order served on him on 2 July 2020.” However the submission was not corrected by the applicant’s representative in the sentencing proceedings.

47. There are, as a result of aspects of the sentence proceedings as set out above, statements in the sentencing judge’s remarks on sentence which go beyond the agreed facts and have clearly had an effect on his Honour’s assessment of the objective seriousness of the offending.

48. His Honour’s remarks commenced, by way of overview:

“On 10 July 2021 there was a serious gun-related incident in South Grafton wherein a man … was knocked unconscious after the offender’s elbow connected with his head. Very shortly after that, a pistol in the possession of the offender was discharged on two separate occasions, injuring two teenage boys.”

49. Evidence supporting this proposition was not before his Honour, and is not before this Court for re-sentencing. His Honour then spent a number of paragraphs analysing why the jury may have returned the verdicts it did. His Honour then set out a table of the offences for sentence, and then the relationship between relevant facts and charges. In this section his Honour expressly stated that the charge of possession of a firearm in contravention of an FPO (count 3 on the Sentence Indictment) does not just encompass the possession of the pistol “it also encompasses the possession of the shotgun, the subject of Count 1 of the sentence indictment, and on the agreed facts, is representative of numerous other firearms which the offender acknowledges were in his possession from time to time, in breach of the FPO.”

50. Before setting out the agreed facts for sentence, his Honour provided an overview of the objective criminality which included observations such as the following:

“Notwithstanding the acquittal by the jury of the two charges, the totality of the criminality involved in the various charges that are before me for sentence, as disclosed in the agreed facts and from the evidence I heard during the trial is, to my mind, of the highest order.

As far as the possession of firearms is concerned by reference to the pistol itself, for reasons I will explain, it is difficult to imagine a more serious example of such an offence. It should be considered very much towards the top end of objective seriousness for that offence.”

51. His Honour found that the same could be said of the discharge firearm offence (Trial Indictment count 3). This statement was made in part because there was an agreed wish to shoot the young man because the applicant was angry with him, and also because “It was also the second time the gun had discharged in the hands of the offender in the space of a matter of minutes.” His Honour referred to an altercation between the applicant and the first young man who was shot, which resulted in the young man being rendered unconscious. This was not contained in the agreed facts.

52. Under a heading addressing the alleged assault and shooting the subject of the jury’s acquittals, his Honour stated that the agreed facts did not cover in any detail what happened when the gun was first discharged, and found that “It must be accepted that [the victim] was shot by the gun whilst the gun was cocked and loaded and in the hands of the offender with his finger on the trigger.” This was not contained in the agreed facts. His Honour then expressed views as to the basis of the jury verdicts, stating that he was not punishing the applicant for shooting that victim.

53. His Honour proceeded to make numerous factual findings arising from the evidence at trial, indicating that these could and must be taken into account when assessing the objective seriousness of the possession charge. These included matters such as an asserted intention to fight a particular person whilst in possession of the revolver, and the circumstances in which the revolver was first discharged. This first discharge was in turn found to also be most telling in the assessment of the discharge offence for which the applicant was to be sentenced, namely count 3 on the Trial Indictment. This assessment included the proposition that because of earlier events it was “not surprising” that the applicant was hit over the head with a hockey stick.

54. His Honour concluded this section of the sentencing judgment by stating that it is against those facts and in that context that the objective seriousness of the possession and discharging matters relating to the pistol needed to be assessed.

55. In addressing the objective seriousness of the two possession charges, his Honour found that there was a large, if not complete, degree of overlap between the two charges. His Honour acknowledged the risk of double counting, as an aggravating feature of the possession charge, the fact that the revolver was possessed in contravention of an FPO. His Honour then stated:

“However, the possess firearm in contravention of an FPO does not just relate to the possession of that pistol, it relates to the supply of the shotgun, being Count 1 of the sentence indictment and a host of other firearms which are the subject of the agreed facts.

Accordingly, whilst there is almost total overlap between the facts underpinning these two charges in relation to the pistol itself, there is not total overlap because of the many other guns possessed in contravention of that same order.”

56. His Honour then made the following findings relevant to the possession charge which was count 4 on the Trial Indictment:

“So far as the objective seriousness of the possession of the pistol is concerned, the following matters are, to my mind, significant:

(1) The offender’s admitted constant possession on his person of this concealed shortened pistol with it being loaded;

(2) That constant possession persisted for a prolonged period of time;

(3) It is very significant that the offender was not merely carrying that loaded pistol for protection, or to show off in some way, or as some sort of hobby, but in fact used it in a shooting, that is to inflict actual violence as well as to threaten violence to multiple other people on various occasions. This is a specific aggravating factor under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”).

(4) The offender’s intention in possessing the pistol, as well is his use and threatened use of it from time to time, can only be considered both violent, premeditated and as part of his wider criminal activity including selling drugs.

(5) It is inevitable that the intent of the offender in his persistent possession of a loaded pistol was to use it for criminal purposes. It was almost certainly something he used in connection with his drug supply activities but also, it would seem, so that he could use it to threaten, and if necessary, shoot people with it.

(6) Given his familiarity with the pistol he must have known of its very “light trigger” and the ease with which it could discharge.

(7) As I have said, whilst I am not sentencing the offender for deliberately shooting anyone, it is an objective fact that the consequence of his illegal possession of the firearm on the night was the root (if not legal) cause of two young people being shot.

All in all, I consider the possession charge and the contravention of the FPO charge to be in the highest range of objective seriousness.”

57. His Honour then indicated that the same could be said of count 3 on the Trial Indictment. His Honour then stated as follows:

“By far the most serious aspect of this offence and the offending overall must be the offender’s state of mind at the time the firearm was discharged for the second time. That is, he did not merely discharge the firearm or do so in a reckless or dangerous manner but he actually intentionally and maliciously fired it at a person in close proximity to him while they were running away in an act of rage, having recently described that person as a “mother fucker”. It is true, as the offender’s counsel has reminded me, that the offender is not charged with intentionally discharging the firearm to cause injury but rather with discharging it in a manner likely to endanger. So much may be accepted, and I must take care not to sentence the offender in a manner that would amount to the elements of any charge with a higher maximum penalty. However, whilst what that means is that the offender cannot be sentenced on the basis he intended to cause grievous bodily harm (either in discharging the gun or in causing a wound, both of which would attract a higher maximum penalty than the charge before me), that does not mean, and I reject any submission by the offender to the contrary, that I simply ignore the fact that I know what the offender’s state of mind was at the time the firearm was discharged, and that I know that the firearm, on being discharged, shot and injured someone.

Again, I do not think there is any option other than to classify this offending at the highest end of the range.”

58. In accordance with the submissions of the parties, his Honour provided a discount of 10% for both possession offences, and 5% for both supply offences, with no discount for the discharge offence.

59. His Honour referred to aspects of the psychiatric evidence. His Honour accepted the applicant’s history of a deprived background as set out in Dr Rae’s report and found that this entitled him to leniency. As noted above at [22], his Honour acknowledged the principles enunciated in Bugmy were engaged.

60. His Honour found that the applicant’s “long period of criminality to date and his lack of contrition and remorse, and his personality traits are telling factors against his prospects of rehabilitation and therefore exacerbate my concerns as to the need to protect the community from the offender.”

61. His Honour also found that the connection between the applicant’s deprived upbringing and his antisocial personality disorder was tenuous at best, but “not irrelevant”, and accepted that the applicant’s drug addiction was a direct consequence of his deprived upbringing, and that he was not morally responsible for it.

62. Of Dr Rae’s opinion that the chance of successful therapy depends on it being delivered in a secure framework (above at [31]), his Honour stated that he thought such circumstances were very unlikely to occur.

63. His Honour referred to the applicant’s criminal history and stated that he was not entitled to leniency, and that the record is an aggravating feature - especially as it includes a history of violent crimes, sometimes involving guns. His Honour stated this record did not bode well for prospects of rehabilitation, and referred to Dr Rae’s evidence of an “inability to profit from punishment”. His Honour stated:

“The offender is, in my judgment, a dangerous, violent, habitual criminal from whom the community is entitled to be protected. His prospects of changing his ways are low. I do not think specific deterrence has much part to play. His personality includes ‘an inability to profit from punishment’.”

The parties’ submissions

64. As noted at the outset, the parties agree that ground 1 must be upheld.

65. In support of grounds 2(b) and 2(c), the applicant did not contend that there was error in his Honour taking into account to some extent as relevant context the length of the time over which the applicant had been in possession of the revolver by 10 July 2021, nor the fact that it was carried for particular purposes in that period, despite the possession charges being particularised as possession on 10 July 2021. It was however submitted that in a number of ways the sentencing judge went beyond this way of approaching the background evidence.

66. It was submitted to be erroneous to have found either possession offence aggravated by it involving the actual or threatened use of violence, as referred to in s 21A(2)(b) of the Sentencing Act. It was submitted to be erroneous to find the possession offences aggravated by offending for which the applicant was: not charged (threats other than on the charge date), acquitted (the first discharge on 10 July 2021), or otherwise to be separately dealt with (the discharge offence). His Honour was submitted to have erred in stating that count 3 on the Sentence Indictment related to not only the revolver, but the shotgun the subject of count 1 on the Sentence Indictment, and multiple other weapons.

67. The correct approach was submitted to involve recognition that possession on 10 July 2021 was not mitigated by it being isolated. The possession offences were more serious examples because they were not a “one off”. The applicant had not borrowed the weapon from someone else that day. Analysed this way, these were acknowledged to be objectively serious possession offences, but not as serious as his Honour found them to be, given the confines of the date on the indictment, limitation to a particular weapon, and their place overall within a suite of offences for which the applicant was to be sentenced

68. As to grounds 2(b) and (c), the respondent submitted that the sentencing judge was entitled to take into account the context in which the applicant was in possession of the pistol in assessing the objective seriousness of these counts, to demonstrate that the possession on 10 July 2021 was not an isolated incident. In this regard, it was permissible and relevant for the sentencing judge to consider the purpose for which the applicant had possession of the pistol. In the present case, the applicant had the pistol in his possession as one of the weapons available for sale in his business of supplying illegal firearms. It was also relevant that at the time, the applicant was engaged in the business of illegal drug supply and felt the need to be armed with that pistol whenever he went out. A possession offence, or an offence involving breach of an FPO, by a person temporarily in possession of an illegal weapon only because he or she was minding it for someone else, would be far less objectively serious than an offence of possession and breach of an FPO by a person who had those weapons because they were part of their tools of trade when engaging in crime.

69. It was submitted that his Honour made it clear that he was taking into account the above context only as part of his assessment of the objective seriousness of the charges of possessing the pistol and breaching the FPO. His Honour was also submitted to have reminded himself that he needed to take care to avoid double counting when assessing the objective seriousness of the possession and breach of the FPO offences.

70. Regarding the number of firearms taken into account by his Honour in relation to Sentence Indictment count 3, the respondent submitted that the possession of other weapons indicated that the possession of the revolver on 10 July 2021 was not an isolated incident, and was also relevant to prospects of rehabilitation and the risks of reoffending.

71. The respondent submitted that as the circumstances of the offender’s possession of the firearm was set out in the agreed facts, the sentencing judge was entitled to place the possession of the pistol in its proper context, noting the applicant’s possession of it prior to 10 July 2021, including carrying it with him everywhere he went whilst it was loaded.

72. It is unnecessary to resolve ground 2(a) for the purposes of re-sentencing. The parties’ submissions are thus only briefly referred to. It was submitted for the applicant that his Honour’s finding that the applicant “intentionally and maliciously” fired the revolver at a person in close proximity to him must equate with an intention to cause grievous bodily harm, despite his Honour’s disavowal of sentencing consistently with a more serious offence involving such intent.

73. The respondent submitted that the phrase “intentionally and maliciously” did not connote any more than what was contained in the agreed facts. It was submitted that his Honour was explicitly mindful of the need to not sentence for a more serious offence, such as one which involved an intent to cause grievous bodily harm. It was submitted that this Court in re-sentencing would also need to be cognisant of such limitation; and that the Court would not need to specifically endorse the phrase “intentionally and maliciously” as, in the respondent’s submission, it did not add to or qualify the agreed facts.

74. Otherwise regarding re-sentencing, it was submitted for the applicant that weight should be given to specific deterrence, despite the sentencing judge’s statement of its limited role.

Determination

75. Ground 1 should be upheld, as the parties’ joint position is correct. Sub-grounds (b) and (c) of ground 2 should also be upheld. It was erroneous to sentence the applicant for possession of the shotgun (the subject of the Sentence Indictment count 1) and the “host of other firearms which are the subject of the agreed facts,” for either of the possession charges, which related only to possession of the single weapon (the revolver), on a single day (10 July 2021). His Honour twice referred to possession of the shotgun as part of the offending for which sentence was to be imposed for that possession, and referred to sentencing for the other firearms also (although on another occasion referring to the firearms other than the shotgun as demonstrating the possession of the revolver and shotgun as representative of broader offending): see above at [49] and [55]. The submissions on behalf of both parties in the District Court explain how this error occurred.

76. It was also erroneous to take into account the evidence from the trial that was not included in the agreed facts as elevating the objective seriousness of either possession charge or the discharge offence. The respondent has not advanced any meaningful reason in this Court as to how the trial evidence not included in the agreed facts – nor even the two paragraphs of the agreed facts the subject of objection – could have been properly taken into account. The focus of the respondent’s submissions was on the broader criminality outlined in the agreed facts. The parties were in this Court, correctly, in agreement that all this meant was that the possession offences could not be considered, in mitigation, to be isolated, and that the context showed the applicant’s possession to be regular and for a criminal purpose rather than a hobby or interest.

77. Both offences of possessing the revolver on 10 July 2021 had 14 year maximum penalties. It was erroneous to find the objective seriousness of these aggravated, and as being at the top of the range, because of a discharge of the revolver on that date for which the applicant was not criminally responsible (the trial evidence) and the act of firing it on 10 July 2021 in a manner that endangered someone (for which the applicant was to receive a separate sentence of imprisonment, this offence carrying a maximum penalty of 10 years imprisonment).

78. There is no need to consider the applicant’s complaint of manifest excess.

Re-sentencing

79. Two affidavits were read for the applicant on the usual basis. In the applicant’s affidavit affirmed 2 July 2025 he states that after he was sentenced in May 2024 he was transferred from Parklea Correctional Centre to Clarence Correctional Centre on 27 May 2024 and has remained there. Since being sentenced he has not received any internal charges nor punishment for misconduct. He described the sentence received as “a huge wake up call for me.” He says “It feels like I have nearly died, it feels very crushing. It is a huge reality check and even thinking about it nearly brings a tear to my eye.” He explained that since being sentenced he has stopped to think about and take stock of his life. He states the process has given him time to reflect on everything he has been through, what he has done wrong, those he has hurt, and how he needs to change. The applicant described his treatment with the Buprenorphine injection as “a game changer”. He stated that previous cravings have completely gone, and he feels a lot more “levelled out”. He expressed a wish to continue with such treatment when back in the community.

80. The applicant spent a period of time in the behavioural management unit after being sentenced, having been given a direction to not attempt to bring contraband into the gaol. The applicant explained how he has been working as a sweeper since he has been in Clarence Correctional Centre. This is a trusted position that he takes seriously. He also described a role as a “delegate”, like a peer worker or mediator, in which he endeavours to try to resolve disputes between inmates and officers. Since being in custody he has done a course to work as a barber and cuts the hair of a lot of the inmates.

81. At the time of affirming his affidavit the applicant was completing a painting for the elders for NAIDOC week. He had done the same in 2024. He also performed at a NAIDOC week event in 2024, which he enjoyed, and was planning to repeat this in 2025.

82. The applicant stated that due to the length of his sentence there are not any programmes related to his offending for which he is yet eligible, but he was willing and looking forward to participating in any programmes that may be offered to him.

83. The applicant calls his daughter nearly every night, and says that these calls mean everything to him. She has come to visit him. He has support from one of his foster mothers. She has offered him a place to stay when he is back in the community to help him get back on his feet. She lives in Coffs Harbour. He said “When I am back in the community, I want to take time to actually live my life and enjoy it instead of being stuck in this life of drugs. I want to be a father and be there for my daughter and contribute to society.” He referred to having had periods before in his life when he has worked hard and stayed on track, and expressed willingness to do any work that he can when he is released. He referred to having worked in forestry and manual labour cutting sugar cane. He has hopes of doing something to assist youth who have been through difficult experiences.

84. The affidavit of the applicant’s solicitor, affirmed on 2 July 2025, refers to material to which he has had access which supports aspects of the applicant’s affidavit. He reviewed and annexed notes regarding the applicant’s transfer to the behavioural management unit because of his alleged introduction of contraband into the Correctional Centre, accompanied with a direction to not continue to do so. The applicant was recorded as having relocated to the behavioural management unit on 28 August 2024. The applicant’s solicitor detailed restrictions in the applicant’s movements during the period of time that he was in that unit. The applicant was the subject of positive case notes and his time permitted out of the cell was increased over time. He spent 43 days in total in this unit.

85. The applicant’s solicitor confirmed that the applicant had received no internal charges or misconduct entries since the date of sentence. He referred to positive case notes relating to the applicant’s compliance whilst in the behavioural management unit. He referred to case notes confirming the applicant’s work as a sweeper being undertaken to a high standard of competence. In relation to the applicant’s description of himself as a delegate or mediator, his solicitor referred to a case note which described the applicant as helping to de-escalate a situation with an inmate.

86. For the offence of discharging the revolver (Trial Indictment count 3), but for the guilty plea I would have imposed a sentence of 6 years and 6 months imprisonment. This was objectively a very serious offence because of the proximity of the victim, and the action of firing - pointing down low and deliberately, in a swinging motion. The applicant was angry and wanted to shoot the victim; but it is necessary to bear steadily in mind that he is not being sentenced for a more serious offence involving an intent to cause grievous bodily harm nor realisation of the prospect of wounding. The victim was not seriously injured. The offence was not planned, and was directly caused by the applicant’s anger at being struck. In light of the subjective material, his moral culpability for such impulsive violent behaviour was reduced, but this also renders protection of the community from the applicant particularly important.

87. The applicant’s criminal record is plainly not a positive feature of his case, but its seriousness should not be overstated. The applicant spent some time in juvenile detention until the two control orders imposed in 2008 were varied on appeal to provide instead for probation. His first sentence of imprisonment as an adult resulted in his release shortly after he turned 19, and he did not return to custody until he was nearly 27. He had a long period of time in the community without offending. Despite his traumatic background he had a significant period of personal stability and lack of contact with the criminal justice system. I do not overlook the applicant’s reports to the psychiatrists of a longstanding pattern of drug supply to support his addiction; but for six and a half years this was not undertaken to an extent that caused any charges to be laid, and the evidence indicates he was undertaking legitimate work during this period, lived with a partner and became a father.

88. The significant criminality that surrounded the offences before his Honour, as well as the criminal activity for which sentence was imposed in the Grafton Local Court in 2023, all occurred during the one year period between release to parole on 22 July 2020 and arrest a year later.

89. The applicant’s criminal history, in light of his background and the psychiatric evidence, suggests an important role for specific deterrence. The terms of the applicant’s affidavit reflect work done in this regard already.

90. The principles enunciated in Bugmy have significant work to do in this case. As well as reducing the applicant’s moral culpability to some extent, there is some diminution in his suitability as a vehicle for general deterrence. However general deterrence, denunciation, punishment and recognition of harm done to the victim are still nonetheless important. The evidence regarding the applicant’s progress in custody since being sentenced is positive. Advancing the applicant’s continuing rehabilitation has an important role in re-sentencing.

91. Taking into account the mandatory discount of 5%, the appropriate indicative sentence for the discharge offence is imprisonment for 6 years and 2 months. Sentencing statistics maintained by the Judicial Commission of New South Wales relied upon by the applicant indicate that this is higher than any of the 28 sentences imposed for this offence in the District Court between January 2008 and September 2018, or the 21 instances of imposition of sentence between September 2018 and June 2024.

92. In relation to count 4 on the Trial Indictment, taking into account the maximum penalty of 14 years imprisonment and standard non-parole period of 4 years, I would have imposed but for the guilty plea a sentence of 4 years and 6 months imprisonment. Reduced by 10% and rounded down slightly this results in a sentence of 4 years imprisonment, and I would indicate a non-parole period of 3 years. Protection of the community was referred to above at [86]. It has an important role to play in determining the appropriate sentence for all offences.

93. This offence involved the possession of one weapon, on a single day, although the context set out in the agreed facts demonstrated that this possession was not isolated, and the revolver had been used by the applicant in connection with criminal offending such as drug supply (for which he has been sentenced). It was loaded, possessed in public, and was dangerous because of the light pressure required to discharge it. The Judicial Commission of New South Wales statistics relied upon show that of the 96 cases dealt with in the District Court, only 9 resulted in a sentence longer than 4 years. This must be contextualised further by recognising that the vast majority of firearm possession charges are dealt with to finality in the Local Court, and those dealt with on indictment in the District Court are generally the more serious instances of unlawful possession of firearms.

94. The same sentence is indicated for count 3 on the Sentence Indictment. It has the same maximum penalty, and the same features affect its objective seriousness, with similar absence of the mitigation that would exist if the possession on 10 July 2021 was isolated.

95. As to the appropriate sentences to indicate for the supply offences, count 2 on the Sentence Indictment seems on its face incompatible with the same sentence for count 1, given the significantly greater maximum penalty for count 2. However no argument was advanced in connection with these offences by the parties. Both offences involved offers to supply only (and in connection with the revolver this was not even an offer that was accepted). Given their relatively limited impact on the aggregate, I propose to maintain the indicative sentences nominated by the sentencing judge for these two offences.

96. Totality is very important in this sentencing exercise, in relation to the five offences now before the Court. The three offences committed on 10 July 2021 have a significant amount in common, relating to the one weapon, although there is distinct criminality associated with each. One of the supply offences involved an offer to supply the same weapon, less than a week earlier. The other supply offence related to an offer to supply a shotgun, within that same close time frame.

97. Apart from these common features, the crushing nature of the sentence on this particular man needs to be considered closely. The total effective sentence imposed by the sentencing judge, accumulated to the extent that it was on the sentence imposed in the Local Court for offending in the same year (and which was related to the context in which the firearms offences have been considered), required his imprisonment between 30 and 44 years of age, and then conditional liberty on parole for 4 more years. The total criminality, for this man, does not warrant a sentence of that length. Further, his background, positive progress in custody, and the crucial role of supporting the continuation of this on release - as well as the partial accumulation on the sentence imposed in the Local Court - warrant a finding of special circumstances.

98. Leaving the commencement date as set by his Honour, and recognising that this produces a substantial degree of accumulation upon the Local Court sentence, the aggregate sentence I would impose for the five offences now before the Court is one of 11 years imprisonment with a non-parole period of 7 years.

Orders

99. Accordingly I propose the following orders:

100. Grant leave to appeal;

101. Uphold the appeal;

102. Set aside the sentence of imprisonment imposed in the District Court on 10 May 2024 and in lieu thereof sentence the applicant to a term of imprisonment of 11 years commencing on 27 February 2023 and expiring on 26 February 2034, with a non-parole period of 7 years imprisonment commencing on 27 February 2023 and expiring on 26 February 2030.

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