Mack v R; Mack v R

Appeal by Wayne Mack 23 The sentencing judge noted that the Applicant was aged 42 years and had no criminal history. His Honour noted that the Applicant's father and grandfather had been interested in firearms and that the Applicant had been a member of a gun club in Wollongong where he was born and raised. After he moved to and purchased some land near Mudgee, the Applicant continued his interest in guns and did work in the Mudgee district eradicating feral animals such as pigs. At various times he had a licence for certain firearms. He had some registered firearms and had been an authorised user of firearms for feral animal eradication. 24 The Applicant did not give evidence at the sentencing hearing but evidence was given by his mother. She gave evidence that one of the silencers found at the property had been made for the Applicant by his grandfather when the Applicant was a teenager to enable him to shoot rabbits without the rabbits hearing the noise of a gun. She gave evidence that he had held a gun licence from his teen years. No explanation was given for the possession of the second silencer. 25 His mother also gave evidence explaining why he carried a loaded revolver in his motor vehicle. She said it was in connection with the trapping of pigs. It was necessary to have a loaded revolver in case one of the pigs attacked the dogs used to assist in the trapping of pigs. She gave evidence that his grandfather, his father and his uncle had all collected guns. 26 His Honour made no findings about the Applicant's drug use. His mother's evidence was that she did not know that he or Annette smoked marijuana although, since their arrest, they had told her that they did. 27 It was in the light of that background that his Honour came to sentence the Applicant.

Ground 1 - sentence imposed on count 2 was too severe 28 Count 2 was the offence of supplying a prohibited drug being cannabis oil in the amount of 183.6 grams. The sentence was a total term of 4 years with a non-parole period of 2 years commencing from 26 March 2008 and expiring on 25 March 2010. 29 His Honour made what must be regarded as non-controversial statements about the cultivation and supply of drugs, the harm to the community from them and the need for sentences that act as a general deterrent. 30 When coming to the particular offences charged, his Honour said this: "With respect to the drug offences the law states ten and fifteen years and it is not a matter of court categorising the type of drugs, the legislation has already done that so I am bound to consider the penalty as stated by the law as the benchmark for the most serious cases and then refer to the statistics to ascertain the appropriate range.

The statistics are limited. For enhanced cultivation the statistics show a range of six months to eighteen months for the non-parole period which does seem very low considering the overall effect of any drugs in our society today. But I am also considering the matters on the Form 1 which in themselves are serious. I will consider a period of eighteen months for the non-parole period for the enhanced cultivation. For the supply which comes under a provision with a higher maximum I would have to consider a period of two years non-parole. This would be arrived at by starting at a term of four years with allowance for the plea of guilty taking it to three years and then an allowance for his no prior involvement with the law meaning I can consider good prospects for rehabilitation in finding a non-parole period of two years." (emphasis added) 31 In fact, as I have pointed out earlier, the maximum penalty in terms of imprisonment for the advanced cultivation was the same as the maximum penalty for supply. But on the basis of what the sentencing judge and the parties believed was the maximum under count 1, the applicant submits, nevertheless, that simply because there was a higher maximum penalty for count 2 did not mean that a higher sentence was required. This was because the offence charged in count 2 was objectively less serious so that a lesser sentence was warranted. 32 In Markarian v R (2005) 228 CLR 357 the High Court was dealing with the approach taken by this Court in a Crown appeal against an inadequate sentence for a charge of supplying heroin in an amount not less than the commercial quantity for that drug - 415g. The Drug Misuse and Trafficking Act 1985 provided for a variety of maximum periods of imprisonment depending on the quantity of the drug involved. In relation to heroin, where the quantity is less than 250g and the matter is dealt with on indictment the maximum penalty is 15 years imprisonment. Where the quantity is not less than 250g but less than 1000g it is 20 years imprisonment and where the quantity is not less than 1000g it is life imprisonment. 33 In the course of re-sentencing the offender, Hulme J (with whom Heydon JA and Carruthers A-J agreed) said: "Had the [appellant's] offence and circumstances fallen within the category of a worst case falling within the statutory provisions, the sentence should have been not less than the 15 years maximum for the offence of supplying an indictable quantity. I appreciate that the charge specified a commercial quantity, that the maximum period of imprisonment prescribed for that offence is 20 years and that the quantity involved in this offence was only a little more than 40 per cent of the maximum commercial quantity. However, Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity. " (emphasis added)

34 Of the highlighted statement the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ said: "[31] …The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence.

[33] A serious fallacy in his Honour's reasoning is that it assumes that any case involving more than 250g of heroin is likely to be a worse case than any case involving only 250g or less. That cannot be so in the virtually absolute terms in which his Honour puts it. … Having started with a penalty which would have been appropriate for the worst possible kind of offence of supply involving up to 250 grams of heroin, Hulme J made no attempt to identify the nature of such a case and to make a comparison of the facts of the principal offence with it." 35 What the sentencing judge said in the passage I have highlighted in para 30 above was ambiguous. His Honour could simply have been noting the higher maximum penalty in respect of count 2 without reasoning, as was contended by the Applicant, that for that reason alone he had to impose a higher penalty. However, one matter supporting the Applicant's contention is that the sentencing judge did not discuss anything in particular relating to the objective seriousness of each of the offences of cultivation and supply to enable a proper comparison between them. 36 Nevertheless, if the sentencing judge made an error in this regard his error in relation to the maximum penalty on count 1 worked in the applicant's favour. I do not consider that either the non-parole period, nor the term of imprisonment ordered in relation to count 2 was outside the appropriate range of discretion of the sentencing judge.

Ground 3 - error in applying Part 4 Div 1A of the Act 37 His Honour imposed a term of imprisonment of 6 years with a non-parole period of 3 years commencing 26 September 2009 and expiring 25 September 2012. 38 His Honour drew attention to the maximum penalty of 20 years and the standard non-parole period of 10 years and said that they highlighted how seriously the legislature and the community saw the unauthorised possession of firearms. His Honour went on, correctly, to refer to R v Way (2004) 60 NSWLR 168 to note the correct approach in relation to sentencing where there is a standard non-parole period. In this regard his Honour said that the standard non-parole period can be seen as a reference point for a mid-range case "although not necessarily the starting point". 39 However, what his Honour did not do was to follow the approach to sentencing required by Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 and as explained in Way, R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [32] - [34] and MLP v R [2006] NSWCCA 271; 164 A Crim R 93 at [28] - [38]. In particular, his Honour did not determine in the first instance the level of objective seriousness of the offence, although it can probably be inferred that his Honour took the view that it was to be assessed at less than the middle of the range of objective seriousness because his Honour said he would start at eight years non-parole before reducing it for particular matters. 40 His Honour did not, as he should have done, identify the matters which go to determining the objective seriousness of the offence. Simpson J in AJP at 13 identified the factors and matters in general terms that ought to be examined. Applying those to the facts in the present matter suggests that the following would be the relevant considerations: (a) the number of the firearms; (b) the number of the firearms that were prohibited or were pistols;

(d) the purpose for the possession of the firearms; (e) evidence which would show any relationship between the possession of the firearms and the drug industry being carried on at the premises; and (f) the location of the property and the security under which the firearms were kept. 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. 43 His Honour's approach was to reduce the 8 year period to 6 for the plea of guilty (a 25 per cent reduction) and then to reduce the non-parole period to 3 years for what his Honour said was the Applicant's clean record and the principle of totality. That was a substantial reduction but the Applicant claims that the sentencing judge, having found that the offence was less than the middle range of objective seriousness should not have allowed the standard non-parole period to have dominated the remainder of the sentencing exercise. 44 Although it is true that a non-parole period of 3 years for the offence is quite a bit higher than the statistics show had been given (88 per cent given 2 years or less) the statistics were those for offences to which a standard non-parole period did not apply. The standard non-parole period for an offence against s 51D(2) came into force on 1 January 2008. It applied to offences whenever committed except in the case of an offender who had, by that date, been convicted or had entered a plea of guilty which had not been withdrawn. In any event, care must be taken in the use of statistics in sentencing; Way at [140] and Graham v Regina [2009] NSWCCA 212 at [35]-[37]. 45 It does not seem to me that his Honour did allow the standard non-parole period to dominate the remainder of the sentencing exercise. It is made clear in both Way and AJP that the standard non-parole period remains of relevance as a reference point, benchmark, sounding board or guidepost even if there are reasons for departing from it. It does not seem to me that the non-parole period set was outside the range of appropriate discretion of the sentencing judge.

Ground 4 - error in the commencement dates for counts 2 and 3, and totality 46 The effect of the sentences was that the Applicant received an aggregate term of imprisonment of 8½ years and an aggregate non-parole period of 5½ years. The Applicant says that for the 3 offences charged this was neither just nor appropriate and a lesser degree of accumulation was required. 47 His Honour said in this regard: "On the matter of totality for the number of separate offences I would recognise the conjunction of the two drug offences and allow some concurrency there and then in relation to the firearms offences also allowing for some concurrency and at the end there would still be a suitable period of parole to allow for the effect of any accumulation. " 48 His Honour accumulated count 2 by 12 months and accumulated count 3 by a further 18 months. The Applicant says that the 2 drug offences should have been accumulated only by 6 months and the firearms offence accumulated by another 6 months. This would have the effect that his non-parole period would expire on 25 March 2011. 49 In Cahyadi v Regina [2007] NSWCCA 1 Howie J (with whom Price and Adams JJ agreed on this aspect of the judgment) said at [27]: "… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality." 50 Similarly, in R v MMK [2006] NSWCCA 272 the Court said: "[11] …It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence…" 51 Although the sentencing judge made reference to the matter of totality for the offences there is no indication that he approached the matter in the manner discussed in Mill v R (1988) 166 CLR 59 at 62-63, R v Pearce (1998) 194 CLR 610 at 624 and subsequently in Johnson v The Queen (2004) 78 ALJR 616 at [18]-[27]. When the principle of totality is viewed, the overall criminality of the offences did not justify a sentence of imprisonment of 8½ years and a non-parole period of 5½ years and was outside the appropriate range of discretion for the reasons that follow. 52 There was a close connection between the first two counts being the cultivation of the cannabis plants and the supply of cannabis oil. Indeed, given the size of the cultivation and the amounts of cash found, the main purpose of it must have been for the supply of the prohibited drug in one form or another. In making the sentences for those offences concurrent only to the extent that the sentencing judge did means that the sentence was excessive in terms of the overall criminality of the drug business being conducted by the Applicant. Compared with a number of cultivations that have come before the courts, this was a relatively small operation, and part of its reason was no doubt connected with the use of the marijuana by the Applicants. In terms of the overall criminality for the drug offences his Honour appropriately sentenced the Applicant to a longer period for count 2. But to accumulate that sentence by 12 months was outside the proper range of discretionary judgment bearing in mind the connection between the 2 offences and the longer sentence given for count 2. 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. 54 In all the circumstances, a proper application of the principle of totality would have resulted in an overall sentence of 7½ years with an aggregate non-parole period of 4½ years. His Honour ought to have directed that sentences in respect of counts 1 and 2 should have been served concurrently. The result would have been, therefore, that the Applicant's non-parole period in respect of count 2 would have expired on 25 March 2009. His Honour was not in error in accumulating the sentence for count 3 in the way he did. However, the correction to the accumulation that ought to be made in relation to the sentence for count 2 has the result that the overall sentence is reduced to 7½ years with an aggregate non-parole period of 4½ years expiring on 25 September 2011. Appeal by Annette Mack 55 There was evidence given by Mrs Beverley Mack at the sentencing hearing to the effect that the Applicant Annette Mack was the submissive one in the marriage. The evidence was that Wayne Mack made the decisions in the family and that Annette was not a confident person and she would go along with what Wayne would suggest and was easily led. 56 Mrs Beverley Mack said that she had some concern as to Annette Mack's level of intellectual function. That view receives support from the report of Mr Alex Edgar, forensic psychologist, whose testing placed Annette Mack at the top end of the Borderline range with her skills being superior to 8% of the population. 57 Mrs Beverley Mack's evidence about her daughter-in-law's submissiveness is also borne out by what Mr Edgar said in his report as follows: "[The Applicant's] responses indicated she wants to be accepted and involved with others but is hesitant due to her fear of being rejected or humiliated by them. She likely experiences feelings of unease and anxiety and perceives herself to be socially inept and inadequate, consequently she likely undervalues her achievements and engages in self-criticism, frequently feeling alone and isolated. Her test results suggest she restricts her social environment more so since her involvement in the offences and this compounds her depressive symptomatology." 58 Although the sentencing judge referred to the report of Mr Edgar he made no reference to his assessment of the Applicant in terms of the psychometric and personality testing conducted by him. His Honour, however, touched on this issue when he said this: "It is submitted to me that she was only the partner of her husband in this matter [i.e. the propagation of drugs] and of course I have already dealt with her husband and that in fact it was his operation and she was in the position of a wife who had to go along. However she herself was a user of cannabis and therefore must be taken to have known exactly what was happening …"

His Honour appeared only to relate the matters raised by Mrs Beverley Mack and Mr Edgar to the drug charge. 59 Further information concerning the Applicant's personal circumstances, noted by the sentencing judge, was that she was aged 45 and had no criminal history. She left home at age 20 after meeting her husband and had no contact with her own family who had largely ignored her. She left school in year 9 without any formal academic qualifications. She had been a cannabis user since 18 years of age although she had ceased using it for about 10 years after the birth of her children. 60 I turn now to consider the grounds of appeal which can be conveniently be dealt with as a whole since they only concern count 2 and the approach to the sentencing on that ground. 61 The Applicant points to two alleged errors on the part of the sentencing judge. First, it is said that his Honour aggravated the objective seriousness of the offence because he said: "[T]here is no evidence as to efforts made by either parent to teach the children about the proper care and security in use of firearms."

That his Honour thought this issue was important can be seen from his return to the same point where he said: "There is no evidence of how the parents were teaching the children and the levels of responsibility and care required by our society in the propagation and use of drugs and the care and security of firearms."

In fact, this was an entirely irrelevant consideration, even if there had been evidence that the parents had not taught their children about the matters his Honour mentioned. It must be inferred that his Honour took this irrelevant consideration into account against the Applicant by reason of the fact that he mentioned it on 2 occasions. 62 Secondly, it is said that his Honour was in error in linking the possession of the firearms with the cultivation of the drugs as the reason for considering a custodial sentence. His Honour said: "For the offender before me for the count on the indictment I must consider a custodial term to take account of the number of firearms involved together with the conjunction of the cultivation of prohibited drugs."

In truth, there was no evidence linking the two things and the evidence that was given pointed the other way because the guns were said to belong to Wayne Mack and had been collected over a long period of time because of his interest in guns and his use of at least some of them for the purpose of the control of feral animals. 63 The important finding his Honour did make in relation to this Applicant and the guns was this: "However I do feel that her possession of the firearms was in a way a flow on from the activities of her husband and that she may not be as positively involved." 64 His Honour then went on to say that even though there was a standard non-parole period of ten years for a mid-range case, he found that her involvement would be below the mid-range of seriousness and would start at 5 years. He then reduced that to 3 years and 3 months for the plea of guilty and again reduced it to a non-parole period of 2 years because of her prior history of no involvement with the law. 65 It seems to me that in coming to a view about the objective seriousness of the offence his Honour ought to have considered the following matters: (a) the evidence pointed strongly to the fact that the firearms belonged to the Applicant's husband Wayne and her liability in relation to the offence arose only from the joint ownership and occupation of the premises; (b) the offence was at the lower end of the range when the number of firearms is considered, particularly given that the silencer should not have been included as a prohibited firearm; (c) there was no evidence that the firearms were connected in any way to the drug business; (d) there was a finding by his Honour in the remarks on sentence for both this Applicant and the husband that there was no history of aggressive behaviour on the part of either of them that might be relevant to the possession of the weapons. 66 If these matters had been properly considered, his Honour ought to have assessed the objective seriousness of the offence at the lower end of the range. His Honour's assessment of the objective seriousness of the offence was an error. In these circumstances, since I have formed the view that some other sentence should have been passed (s 6(3) Criminal Appeal Act 1912) I believe there is a need to re-sentence. 67 The offence in count 2 is, generally speaking, one of considerable gravity having regard to the maximum penalty and standard non-parole period that have been prescribed by Parliament: see, for example, R v Oliver (1982) 7 A Crim R 174 at 177. The Applicant has contended that the sentencing judge erred by imposing a full-time custodial sentence for this offence. Despite my view that the objective seriousness is in the lower range, the need for denunciation and general deterrence dictates that no sentence other than one of full-time imprisonment should have been imposed. In my opinion, and having particularly in mind the matters in para 65 above, the appropriate sentence on count 2 is a sentence of 12 months with 9 months non-parole. Thereafter, the appropriate approach to the totality principle is to sentence the Applicant in respect of count 2 and to accumulate that sentence upon the sentence for the drugs offence by 6 months. The total effective sentence will thereby be one of 3 years 6 months with a non-parole period of 2 years. 68 The records of the Department of Corrective Services disclose that the Applicant was held in custody from 27 March to 4 April 2007 when she was released on bail. This was not drawn to his Honour's attention. In the circumstances, the sentence for the first offence should have been backdated by 9 days to 18 November 2008.

Proposed orders re Wayne Mack 69 In my opinion the following orders should be made:

(4) In relation to count 2, confirm the term of the sentence including the non-parole period but order that the sentence commence on 26 March 2007. The non-parole period will expire on 25 March 2009.

(5) In relation to count 3, confirm the term of the sentence including the non-parole period but order that the sentence commence on 25 September 2008. The Applicant will be eligible for release on parole upon the expiration of the non-parole period on 25 September 2011. The total term will expire on 25 September 2014.

Proposed orders re Annette Mack 70 In my opinion the following Orders should be made: (1) Leave to appeal granted.

(2) Uphold the appeal. (3) In relation to count 2, quash the sentence and in lieu thereof the Applicant be sentenced to a term of imprisonment comprising a non-parole period of 9 months with a balance of the term of the sentence of 3 months. The sentence to commence on 18 November 2008 with the non-parole period expiring on 17 August 2009. (4) In relation to count 1, confirm the term of the sentence including the non-parole period but order that the sentence commence on 18 May 2009. Direct the release of the Applicant on parole upon the expiration of the non-parole period expiring on 17 November 2010. The total term will expire on 17 May 2012.

28/09/2009 - Amendment to Coversheet - lower court is District Court and not Supreme Court. - Paragraph(s) Coversheet

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