Mack v R

Court of Criminal Appeal (NSW)|2022-04-20|Before: Harrison J, Fagan J

Judgment

THE COURT: Wayne Raymond Mack pleaded guilty in the Local Court and was committed for sentence in relation to the following four charges: Charge Sequence Maximum penalty Supply prohibited drug (7.654kg of cannabis) Sequence 4 10 years imprisonment and/or a fine of 2,000 penalty units s 25(1) of the Drugs Misuse and Trafficking Act 1985 No SNPP Possess more than three unregistered firearms including a pistol or prohibited firearm Sequence 33 20 years imprisonment s 51D(2) of the Firearms Act 1996 SNPP 10 years Possess unauthorised prohibited firearm Sequence 47 14 years imprisonment s 7(1) of the Firearms Act 1996 SNPP 4 years Possess unauthorised prohibited firearm Sequence 48 14 years imprisonment s 7(1) of the Firearms Act 1996 SNPP 4 years

Mr Mack now seeks leave to appeal against an aggregate sentence of 8 years imprisonment commencing on 10 April 2018 with a non-parole period of 4 years and 9 months expiring on 9 January 2023 imposed upon him by her Honour Nanette Williams DCJ in the District Court at Dubbo on 25 September 2020. He relies upon the following four grounds of appeal: Ground 1: The sentencing judge sentenced the applicant twice in relation to the same offence. Ground 2: The sentencing judge erred by failing to take into consideration the applicant's mental health by application of the principles of sentencing referred to in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) A Crim R 1; [2010] NSWCCA 194. Ground 3: The sentencing judge erred in the assessment of the objective seriousness in relation to the offence under s 51D(2) of the Firearms Act 1996. Ground 4: The sentence was manifestly excessive.
The Crown has conceded that the error identified by Mr Mack in Ground 1 of his appeal has been established. That ground proceeded upon the contention that her Honour sentenced Mr Mack twice in relation to the same offence, being a "related offence" on a s 166 certificate as well as an offence placed on a Form 1 attaching to Sequence 4. Having regard to that concession, which is properly made, this Court is required to sentence Mr Mack afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; (2014) 238 A Crim R 134; [2014] HCA 37.

Factual background

Briefly summarised the facts are as follows. On 15 March 2018, police issued Firearms and Weapons Prohibition Orders in relation to Mr Mack. Mr Mack did not hold a firearms licence. He was served with those orders at about 9am on 10 April 2018 when he was stopped in his vehicle as he was driving near Mudgee.
The orders were explained to Mr Mack, and he was informed that his vehicle would be searched. When asked if he would like to declare anything within the vehicle, Mr Mack said that there was some cannabis in a resealable bag in the esky. Cannabis weighing 28.2 grams was found in that location. Mr Mack admitted that he intended to supply the cannabis to a friend.
Later the same morning, a search was conducted of Mr Mack's property at xx Bunbury Road, Bocoble. Mr Mack lived there with his wife. He agreed to accompany police as they searched the property. He told them that there was a firearm located behind his bedroom door and admitted being in possession of cannabis plants.
A total of ten firearms were located during the search. Eight of those firearms are the subject of the offence under s 51D(2) of the Firearms Act. The remaining two firearms, both replicas, were separately charged as offences of possess unauthorised prohibited firearm.
The details of the eight firearms that comprise the s 51D(2) offence are as follows: 1. A .22 calibre long rifle GEVARM carbine automatique self-loading rifle with attached scope located behind the door of Mr Mack's bedroom. It is a prohibited firearm. 2. An AMADEO ROSSI double barrel shotgun located in a cavity in a wardrobe in Mr Mack's bedroom. 3. A loaded .22 calibre Magnum ARMI JAGER model frontier carbine revolving carbine firearm located in the second bedroom. The revolver cylinder was found to contain 6 cartridges, five of which were spent. The buttstock had been removed and replaced with a pistol grip which had the effect of shortening the firearm thus making it a prohibited firearm. 4. A MOSSBERG model 500 ATP pump action repeating shotgun located in a white sealed tube in the carport. It was a pump action shotgun and therefore a prohibited firearm. 5. A 7.62 x 39mm calibre Russian manufactured model SKS self-loading rifle located with the MOSSBERG pump action shotgun. It too is a prohibited firearm. 6. A .22 short/long/long rifle calibre Winchester model 39 single shot bolt-action rifle located in a golf bag in the machinery shed. 7. A shortened .22 short/long/long rifle calibre Winchester model 61 repeating (pump action) rifle located in the roof purlin of the machinery shed. The buttstock had been removed which had the effect of shortening the firearm thus making it a prohibited firearm. 8. A .22 short/long/long rifle calibre FIREARMS INTERNATIONAL/ GARCIA Model Bronco single shot rifle found in a wall joint of the machinery shed. Portions of the barrel and buttstock had been removed which had the effect of shortening the firearm thus making it a prohibited firearm.
These firearms were all test fired and found to be in working order.
Mr Mack was charged with eight counts of not keep firearm safely: one for each of the firearms that comprise the s 51D(2) offence. Those offences were taken into account on a Form 1 attaching to the s 51D(2) offence.
With respect to the replica firearms, a metal handgun, described as being "a non-commercially manufactured imitation of a self-loading pistol", was found in the third bedroom.
A shortened shotgun described as "an imitation of a shortened double barrel shotgun (with) no stock" was found under a workbench in the machinery shed. This replica firearm was not designed to fire a projectile by means of an explosive.
During the search of Mr Mack's property, police located a significant quantity of ammunition including, but not limited to, .22 calibre ammunition (both loose and in boxes) and 12-gauge shotgun cartridges. Ammunition was found in three of the four bedrooms, the loungeroom and the study of Mr Mack's house. Some of the .22 calibre ammunition was found within a metre of the .22 calibre long rifle GEVARM carbine automatique self-loading rifle.
In addition to the firearms, police located the following items: 1. Thirty-eight cannabis plants growing in pots in the garage. Mr Mack admitted to having cultivated the plants from cuttings and to having tended to them regularly. 2. A total of 7.654 kilograms of cannabis leaf in two chest freezers located in the laundry and lounge room of Mr Mack's house as well as in a plastic resealable bag found in the fourth bedroom. 3. Cannabis seeds weighing 171 grams were located in the fourth bedroom.
Mr Mack was arrested. He participated in an electronically recorded interview in which he admitted being in possession of cannabis in his car that he intended to supply to a friend. He admitted cultivating and tending to the cannabis plants but made only "partial admissions" to being in possession of three of the firearms found.

Mr Mack's subjective case

Her Honour addressed Mr Mack's subjective case at length.
Mr Mack was born in Wollongong in February 1966. He was 54 years old at the time of sentence. He grew up with his family in Dapto and continues to enjoy positive relationships with family members who he speaks to by phone often. Mr Mack's father took him hunting and taught him to shoot when he was 10 years old. By the age of 13, Mr Mack could shoot and skin rabbits.
Mr Mack completed Year 10, but experienced difficulty reading and spelling. He was bullied in high school and often felt self-conscious and ill-at-ease when surrounded by people, which precipitated his move to Bocoble, in the Mudgee area, in 1989. Mr Mack completed an apprenticeship at the Port Kembla Steelworks before taking a redundancy, after which he taught welding part-time at Mudgee TAFE and took various jobs involving farm repairs. Later, after his release from custody, he obtained part-time employment at Cadia Mines, Ballast Engineering and Port-Kembla before breeding English Bull Terriers became his main source of income.
After moving to Bocoble, Mr Mack went hunting regularly and shot kangaroos, rabbits and wild pigs. He told the psychologist, Ms Anita Duffy, that he had a number of guns and would fix them, swap them with friends and build replicas.
Between 2007 and 2012, Mr Mack was in custody serving a sentence of imprisonment imposed in respect of offences of drug cultivation and the possession of unregistered and prohibited firearms. Like the present offending, his prior convictions included a s 51D(2) offence and offences relating to the cultivation of cannabis.
Mr Mack suffers from degeneration of the vertebrae of his lower back, a condition which has progressively caused him more pain. He relied on cannabis for pain relief prior to being arrested for the present offending. He also suffers from high cholesterol for which he is prescribed medication.
Mr Mack commenced smoking cannabis at the age of 17 and found it relaxing and an aid to sleep and blocking worries. He continued to use cannabis when he and his wife moved to the country and he resumed cannabis use after his release from custody in 2012.
Mr Mack's relationship with his wife broke down in 2019 after his return to custody when she announced that she had separated from him. Following the separation, Mr Mack instructed lawyers to prevent the intended sale of their farm, which was the source of some stress for him.
Mr Mack was described by Ms Duffy as an individual who had experienced symptoms of a generalised anxiety disorder over extensive periods. Whilst in custody from 2007 to 2012, he reported being very anxious and was prescribed Avanza. He discontinued the medication upon his release from custody, notwithstanding his GP's desire to prescribe it. The GP also suggested a referral to a psychologist for counselling. Mr Mack instead returned to using cannabis to manage his anxiety. He had been prescribed antidepressants and mood stabilisers upon his return to custody.
Ms Duffy administered the Millon Clinical Multilaxial Inventory III, a personality questionnaire which measures basic personality characteristics, more severe personality pathology and clinical symptoms more transient and reactive to current circumstances. Mr Mack's scores reflected marked elevations on anxiety and major depression and "above significance" on Delusional Disorder, Somatoform and Post-Traumatic Stress Disorder.
Ms Duffy noted that Mr Mack reported having used cannabis as a method of managing his worries and negative emotions. She noted that a study found that cannabis had a bidirectional effect on anxiety: that while, on the one hand, those with anxiety could experience some acute relief of their symptoms, on the other hand, "regular and heavier use of cannabis could lead to development of cannabis use disorders and, in turn, be associated with a worsening of anxiety symptoms". Ms Duffy thought that, at the time of his arrest, Mr Mack suffered from Generalised Anxiety Disorder and Cannabis Use Disorder and noted that his level of anxiety had increased since his arrest as a result of issues associated with the breakdown of his marriage.
Ms Duffy observed that Mr Mack would benefit from individual counselling regarding anxiety management, that his dependence on cannabis should be managed through a rehabilitation program such as EQUIPS and that psychologists at the Broken Hill Correctional Centre may be able to assist him to deal with the emotional repercussions of the breakdown of his marriage.

Findings below

With the exception of her Honour's finding of objective seriousness for the s 51D(2) offence and her findings in relation to the causal significance of Mr Mack's mental health issues, he does not otherwise challenge the findings that she made. They were relevantly as follows.
Her Honour identified the matters that informed the objective seriousness of the offence contrary to s 51D(2), being those matters referred to by this Court in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [13]. She noted that the eight firearms that comprised the s 51D(2) offence well exceeded the "more than three firearms" necessary to establish the charge and that six of the eight firearms were prohibited firearms, substantially more than the single prohibited firearm or pistol required to establish the offence. Her Honour accepted that there was no evidence that Mr Mack's possession of the firearms was linked with any (other) criminal activity and that there was no evidence that they were in any way connected with the drug business being conducted. Her Honour observed that the firearms were located on a rural property, that none was securely stored and that one in particular was found in close proximity to a holster and live rounds of ammunition. Her Honour observed that the fact that large amounts of cannabis were being cultivated and stored at the same premises as the firearms might be thought to increase the risk of break-ins and theft of the weapons.
Having regard to those matters, her Honour found that the s 51D(2) offence sat at the mid-range of objective seriousness. She assessed the objective seriousness of the remaining offences as follows: 1. The two counts of possess unauthorised prohibited firearm (Sequences 47 and 48) fell towards the lower end of the scale. Her Honour noted that the replica firearms had a toy-like quality about them. 2. The offence of supply prohibited drug (7.654kg of cannabis) fell towards the lower end of the range of objective seriousness having regard to the weight of the drug, Mr Mack's long-standing use of cannabis for pain management and the absence of evidence that he was supplying the drug for financial gain.
Her Honour found that Mr Mack was entitled to a 25 percent discount for his pleas of guilty which were first entered in the Local Court and that he thereby demonstrated contrition and "pragmatically, remorse". Bearing in mind Mr Mack's prior conviction for similar offending, her Honour found that he had only guarded prospects of rehabilitation.
Her Honour observed that, as is commonly the case for offences involving the possession of firearms, general deterrence loomed large in light of the strong need to dissuade others from similar offending. Specific deterrence was said to be particularly relevant in light of Mr Mack's prior conviction for the same offence.
A generous finding of special circumstances reducing the non-parole period to just 59.38 per cent of the aggregate head sentence was made for the following reasons: 1. Mr Mack suffers from a generalised anxiety disorder as well as physical ailments which her Honour accepted would make his time in custody more onerous. 2. Mr Mack would benefit from an extensive period of supervision in the community to enable psychological intervention and referral to drug counselling to prevent relapse. 3. The conditions of Mr Mack's custody were more onerous by reason of the COVID-19 pandemic.

Consideration

It is instructive to recall the circumstances dealt with in Mr Mack's appeal to this Court in August 2009: Mack v R; Mack v R [2009] NSWCCA 216. At [41] and [42] of that decision, Davies J referred to the following matters: "[41] The evidence about these matters can be summarised as follows: There were 5 prohibited firearms; For the offence in s 51D(2) to be committed it is sufficient only that there be 1 prohibited firearm with the remaining firearms referred to in the sub-section being unregistered; 3 of the weapons consisted of a revolver and 2 shortened rifles all of which are firearms that could be concealed; The Applicant was in possession of 2 silencers, one at least of which appeared to have been a homemade silencer made by his grandfather for the purpose of shooting rabbits quietly; The Applicant had long had an interest in guns, had been a member of a pistol club and had held a shooter's licence for a number of years; At least some of the firearms were used for legitimate purposes of controlling and killing feral animals; There was no evidence of any criminal purpose for the possession of the firearms nor that they were used in any way connected with the drug business being conducted; The finding by his Honour that there was no history of aggressive behaviour on the part of the Applicant. The fact that a drug business was being conducted from the premises where the firearms were kept might be thought to increase the risk of a break-in and theft of the weapons. The firearms were located on rural properties and were not properly stored; [42] In my view, the balancing of these matters points to the fact that the objective seriousness of the offence was on the lower side of the middle range of seriousness with the result that it was within his Honour's discretion to take a starting point of eight years before the other deductions were made."
Count 3 considered by the Court in that case was an offence against s 51D(2) of the Firearms Act, the equivalent of sequence 33 in the present case. When dealing with a ground of appeal challenging the sentence imposed for counts that included the s 51D(2) offence, Davies J said this: "[53] Although his Honour did not find that the purpose of the possession of the firearms was related to the drug business being conducted his Honour saw it as a relevant factor that the unauthorised firearms were held by a person who was also involved in the cultivation of prohibited drugs. Further, his Honour referred to the policy of the legislature to ensure that there is no unauthorised and unnecessary proliferation of firearms. The fact that a drug cultivation business was being conducted from the premises increases the risk of the proliferation of those weapons because of the increased risk of a break-in."
In nearly all relevant respects, the position now is little different. Mr Mack comes to this Court with a conviction for a series of offences that largely mirror his prior offending, although on one view the current offences are more serious. The appropriateness of general and specific deterrence appears to assume a greater significance in the present appeal by reason of his prior offending, although Mr Mack challenges that proposition. Predictions about Mr Mack's prospects of re-offending appear correspondingly to have been similarly influenced by his prior offending. Mr Mack challenges that proposition as well
On Mr Mack's analysis, the significant point of difference between his prior offending and the offences with which this Court is now concerned is that Mr Mack's psychiatric condition was the subject of considerable emphasis in the present appeal but appears not to have been a factor considered previously. Understandably, Mr Mack contends that his psychiatric condition should now be taken into account in two ways. First, even though this appeal is concerned with what can be described as repeat offending, Mr Mack maintains that it has been largely caused by his documented psychological inability to come to terms with the significance of his possession of the firearms. His evidence before her Honour was to the effect that he did not know how to dispose of the weapons. For example, Mr Mack endorsed everything that he reported to Ms Duffy, who later described the following: "He said that the firearms found on this occasion were still on the property when he was released from gaol, and he did not know what to do with them for fear of facing new charges. So he smoked more cannabis to avoid thinking about them and tried not to worry. He acknowledged that he should have disposed of them but stated that he used the working guns for hunting. He had grown up with guns and gave many in at the gun buy back scheme after 1996, and made some money from it. He had hoped to hand in these firearms if there were another gun amnesty, but in the meantime, he kept them on his property."
Mr Mack gave evidence at the sentencing hearing to like effect. The Crown drew attention to that evidence in this context, in particular the following: "Q. Can you explain to her Honour how it came about that you did not plead guilty to all the guns you had in your possession when you were arrested on your first charge? A. Well, I wasn't asked about anything, and I didn't know, they weren't on the evidence sheet, I didn't know what to do about it. Q. So when did you find out that you hadn't been charged with all the guns on the first charge? A. When I got the brief and facts and stuff. Q. You didn't put your hand up then and say, hey, I've got some more, did you? A. I thought I'd get in more trouble. I didn't know what to do. Q. When you were released from prison, you didn't at that stage collect the guns that you believed were on your property, did you? A. No. For the same reason. Q. Do you accept that that was wrong, that you should have done something about it? A. Yes, I do realise that now, yes. Very much so."
At one level, Mr Mack's extraordinary failure to recognise the risks associated with maintaining possession of the firearms, when one has regard to the period of imprisonment that he served for effectively identical offending, supports a conclusion that his behaviour is unambiguously related to a psychiatric state that is itself intimately connected to his flawed choices. On this analysis, Mr Mack maintains that he should not be regarded as in truth a repeat offender and that concerns about his prospects for rehabilitation, the likelihood that he will reoffend, or the need to give effect to either general or specific deterrence, all necessarily recede in importance. The sentence to be imposed should have proper regard to these matters.
Secondly, and in a related sense, Mr Mack submits that his moral culpability is lessened by the fact that his offending was caused by his psychiatric state: see Director of Public Prosecutions (Cth) v De La Rosa. That submission draws upon Ms Duffy's opinions concerning his mental health, of which the following extracts and analysis from her report are representative: "Mr Mack's charges of possession of firearms was [sic] dealt with following his arrest in 2007 and incarceration until 2012. Over this period, his life and that of his family changed irrevocably: his wife was in custody for over two years for related charges, leaving his daughter and son to fend for themselves. Mr Mack's sentence was a traumatic and difficult experience, for a person with pre-existing anxiety and paranoid personality, and exacerbated his fear, suspicion and mistrust of others. Subsequent events including the Crimes Commission claims for a large payment, the declining relationship with his wife and children who resented the impact of his incarceration upon their lives, resulted in increased insularity and emotional isolation. His mounting anxiety led to the resumption of cannabis as a method of managing his worries and negative emotions. A study has found a positive association between cannabis use disorder and anxiety symptoms. The researchers found that cannabis has a bidirectional effect on anxiety. Thus those with anxiety could experience some acute relief of their symptoms after cannabis use. However, it was also found that a regular and heavier use of cannabis could lead to development of cannabis use disorders and in turn, be associated with a worsening of anxiety symptoms. After he returned home from his sentence, he found more firearms that had not been located from his earlier charges, and his increasing worries about how to deal with them and avoid detection caused him to withdraw further and smoke more cannabis to try and forget his problems. Although his use of cannabis was primarily an anxiety management strategy, the side effects of the drug may have also exacerbated his distrust, emotional isolation and limited problem solving regarding the possession of his various firearms. There is also evidence that alienation from his family was a further contributing factor to his mental health problems, and his judgment and decision making were affected by cannabis."
It should be noted in this respect that in her remarks on sentence, her Honour referred expressly to Mr Mack's concession "that there was insufficient evidence for the Court to find a causal connection between the offending behaviour and any mental illness and the mental health issues presented by the offender". In support of Ground 2, Mr Mack maintained that no such concession was made and was contrary to submissions in fact made to her Honour below. It is presently unnecessary to resolve any controversy about that. In any event, Mr Mack's written submissions made it clear that he now relies upon the importance of a causal connection between his mental state and his offending, as follows: "The applicant suffered from a mental problem at the time of the firearm offences and this mental problem contributed to these offences in a material way. As the applicant had been in possession of the subject firearms since the earlier offences, he had maintained possession of the firearms up to the time he was arrested and charged in relation to the subject offences. A significant factor in relation to the criminality associated with his offending conduct was his maintenance of the firearms and not handing them into the authorities. As indicated by Ms Duffy, the reason he did this was his ongoing anxiety condition. This was exacerbated by his use of cannabis. The anxiety was the underlying mental condition which contributed to the offences in a material way
Mr Mack affirmed an affidavit on 25 March 2022 that was read in this Court for consideration upon re-sentence. Mr Mack deposed to the following matters concerning his mental health: "11. I still suffer from depression and anxiety. I'm currently on Effexor for anxiety and was on Seroquel for depression but these were stopped in February 2021. They were stopped because 6 tablets were found in my cell. I had forgotten to take them on a few nights and because they make you sleepy, I didn't want to take them too late. I didn't really get given a chance to explain what happened. I should have handed them back, but I didn't, I did the wrong thing. 12. In 2021, the divorce with my wife was finalised and the house sold late 2021. It was a very stressful time, and it was difficult to sort out my affairs from gaol especially with 6 minute calls. The phones at gaol went down during some of the negotiations just adding more stress. 13. My ex-wife wasn't very co-operative and despite all my efforts I couldn't organise the collection and storage of my goods and I've lost almost all my personal belongings. Items like farming tools and equipment, clothing and furniture. 14. It was agreed my family heirlooms; a pocket watch and wedding ring of my grandfather would be sent to my parents' house along with my laptop and other items. I don't know what happened to them, but family heirlooms were not in the package. 15. I am devastated I lost my home and all my belongings. I built that house. It feels like a bad dream. 16. I struggle every day with stress and often feel hopeless. I don't always feel good (head space wise). I have a lot of trouble sleeping waking up multiple times through the night. 17. I saw a psychologist but this didn't help. They tell you to find somewhere quiet and breathe deeply to deal with anxiety. In gaol there is nowhere quiet, in gaol someone is either yelling out or lunch bell ringing. So I declined any further appointments because I didn't find their advice helpful. 18. I am trying to find ways of dealing with my anxiety and depression…".
It is difficult, not to say somewhat artificial, to sentence an offender who was prepared to give evidence at his sentencing hearing in the District Court, but without a corresponding opportunity to see and hear the applicant in person. An accurate characterisation of Mr Mack's explanation for his inactivity is central to this appeal. That problem has present relevance in as much as the Crown maintains in this Court that Mr Mack's evidence that he did not know what to do with the firearms "sits uncomfortably with [his] continued use of the firearms and more importantly, his failure to surrender them during the firearms amnesty that took place between 1 July 2017 and 30 September 2017". Any assessment of that submission can only be made in effect on the papers.
The objective seriousness of Mr Mack's offending was, in our opinion, properly characterised by her Honour in the court below. In the events that have occurred, we are not required to express an opinion in this respect about whether or not her Honour fell into error as Mr Mack alleges. We are able to say, considering the matter afresh, that we agree with her Honour's assessment of the objective seriousness of the s 51D(2) offence. It is also not out of step with Davies J's assessment of similar offending in the earlier appeal.
The burden of Mr Mack's submission is that he was in effect mentally and hence physically paralysed by his anxiety and depression from coming to terms with his illegal possession of prohibited weapons that he clearly understood and accepted he was not entitled to possess. In forming our views about that, we think it is extremely important to make clear that the terrible and debilitating effects of these particular afflictions cannot be overstated. Nor are we in any doubt that Mr Mack has genuinely endured the effects of these conditions for many years. However, the evidence also establishes that Mr Mack had what was unarguably an historical and sentimental attachment to many of these weapons. The evidence does not suggest that that attachment was itself a pathological function of his psychological status. Without intending to convey any pejorative tone, Mr Mack had an admitted and long-standing interest, perhaps approaching an obsession, in the prohibited items in question. These things notwithstanding, we find it difficult to accept that Mr Mack was never in a rational mental state in the period between his release from custody in 2012 and his arrest on the present charges in April 2018 that would, and should, have enabled him to understand and appreciate and to realise that he was vulnerable to detection and prosecution if he did nothing. We are satisfied that at least from time to time Mr Mack made conscious decisions to keep the unlawful and prohibited items in his possession and that their retention cannot be solely attributed to some form of chronic mental inertia.

Re-sentence

The Court is required to re-exercise the sentencing discretion because of the conceded error in ground 1, namely, that her Honour took into account Sequence 3 (possess 171 grams of cannabis seeds) on a Form 1 in relation to Sequence 4 (supply 7.654 kilograms of cannabis) and that she also specified for Sequence 3 an indicative term of 3 months that was then factored into the aggregate sentence.
In undertaking the re-exercise of the sentencing discretion, we would not take Sequence 3 into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, in determining the indicative sentence for Sequence 4. From the appeal papers it does not appear that there was a Form 1 provided to the learned judge that included that offence. Instead, we would nominate an indicative sentence for Sequence 3, under s 167 of the Criminal Procedure Act 1986, and factor that into an aggregate sentence for all matters.
Putting together all of the objective and subjective factors relevant to penalty, we arrive at the same indicative sentences as nominated by the learned sentencing judge, for each of the offences respectively. That includes an indicative sentence of 1 year and 10 months for Sequence 4 (supply 7.654 kilograms of cannabis), which her Honour nominated after erroneously taking into account Sequence 3. The fact that we find the appropriate indicative sentence for Sequence 4 to be the same as that which her Honour nominated merely indicates that the learned judge must have concluded that Sequence 3 had negligible effect on the overall requirement of punishment for Sequence 4.
From the relationship between the learned sentencing judge's indicative sentence of 7 years and 2 months for the s 51D(2) offence and the aggregate sentence of 8 years with a non-parole period of 4 years and 9 months, it is apparent that the s 51D(2) matter was regarded as overwhelmingly the most significant and that her Honour thought substantial notional concurrence of the indicative penalties for the other matters was called for. We make the same assessment.
Her Honour accepted Mr Mack's evidence that all eight firearms that are the subject of the s 51D(2) offence were located on his property when he was released to parole under his previous sentence of imprisonment, on 25 September 2011. It follows that those firearms must have been on the property at the time of Mr Mack's arrest for the previous matters, on 27 March 2007. We do not find in this any mitigation of the seriousness of Mr Mack's offence of being still in possession of these eight firearms 11 years later, on 10 April 2018.
If Mr Mack had informed police when he was arrested in March 2007 of the whereabouts of the additional firearms and if he had then surrendered them, his sentence at that time for possession of the larger number of firearms may well have been greater than what he in fact received, but not likely by a factor of two. He is now serving a second sentence of similar length to that which was imposed for the 2007 offences, for his possession of the balance of his arsenal. The s 51D(2) offence that is under consideration on this appeal involves significant criminality additional to that for which he was previously imprisoned, from 2007. The firearms that were seized from him on 10 April 2018 are firearms that he had allowed to remain on the property while he served 4½ years in custody and of which he resumed possession on 25 September 2011 and kept for another 6½ years until his second arrest.
Notwithstanding that error has been identified, and that leave to appeal must therefore be granted, as the sentence we would impose is the same as that imposed by the sentencing judge, the appeal must be dismissed.
It follows that we would make these orders: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2022

Drugs Misuse and Trafficking Act 1985(NSW)

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